Governance Feminism: Notes from the Field 081669849X, 0816698503, 9780816698509, 9780816698493

Table of contents :
Cover......Page 1
Half Title......Page 2
Title......Page 4
Copyright......Page 5
Contents......Page 6
Preface......Page 10
PART I: Feminism Wields the Sword......Page 40
1 Feminist Governance and International Law: From Liberal to Carceral Feminism......Page 42
2 The Politics of Sex, Rights, and Freedom in Contemporary Anti-trafficking Campaigns......Page 70
3 The Charybdis of Rape Myth Discourse......Page 94
4 Governance Feminism in New York’s Human Trafficking Intervention Courts......Page 122
5 An Accidental Governance Feminist: An Interview with Kate Mogulescu......Page 152
6 The Unintended Consequences of Domestic Violence Criminalization: Reassessing a Governance Feminist Success Story......Page 163
PART II: The Long March through the Institutions......Page 196
7 Governing Sex through Bureaucracy......Page 198
8 Feminism, Law, and Epidemiology in the AIDS Response......Page 219
9 Contesting Feminism’s Institutional Doubles: Troubling the Security Council’s Women, Peace and Security Agenda......Page 239
10 Sex Quotas and Burkini Bans......Page 269
PART III: Ideological Trajectories for GFeminists......Page 300
11 From Bad to Worse via a Successful Constitutional Challenge: The Tragedy of Feminist Engagement with Prostitution Law Reform in Canada......Page 302
12 “You Play, You Pay”: Feminists and Child Support Enforcement in the United States......Page 326
13 Governance Feminism in the French Republic: Veils, Parité, and Feminists......Page 356
14 Gay Governance: A Queer Critique......Page 383
PART IV: Postcolonial Feminists in Global/Local Struggle......Page 414
15 Governance Feminism’s Others: Sex Workers and India’s Rape Law Reforms......Page 416
16 A Cry for Madness: Governance Feminism and Neoliberal Consonance in Pakistan......Page 446
17 Finding and Losing Feminism in Transition: The Costs of the Continuum Hypothesis for Women in Colombia......Page 473
18 Follow the Numbers: Global Governmentality and the Violence against Women Agenda in Occupied Palestine......Page 518
19 Indebted: The Cruel Optimism of Leaning in to Empowerment......Page 544
Acknowledgments......Page 594
Contributors......Page 600
A......Page 606
B......Page 608
C......Page 609
D......Page 612
E......Page 613
F......Page 614
G......Page 615
H......Page 617
I......Page 619
J......Page 620
L......Page 621
M......Page 622
N......Page 624
O......Page 625
P......Page 626
Q......Page 628
R......Page 629
S......Page 630
T......Page 633
U......Page 634
V......Page 636
W......Page 637
Z......Page 638

Citation preview

Governance Feminism

This page intentionally left blank

Governance Feminism NOTES FROM THE FIELD

Janet Halley, Prabha Kotiswaran, Rachel Rebouché, and Hila Shamir, Editors

University of Minnesota Press Minneapolis London

The University of Minnesota Press gratefully acknowledges the generous ­assistance provided for the publication of this book by the Leverhulme Trust (Award Number PLP-2014-387). An earlier version of chapter 2 appeared as “Militarized Humanitarianism Meets Carceral Feminism,” Signs 36, no. 1 (2010): 45–­71, edited by Shirin M. Rai and Kate Bedford. An earlier version of chapter 7 was published as “The Sex ­Bureaucracy,” California Law Review 104 (2016): 881. Parts of chapter 10 were published as “Sex Quotas and Burkini Bans,” Tulane Law Review 92 (2017): 469. Copyright 2019 by the Regents of the University of Minnesota All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the publisher. Published by the University of Minnesota Press 111 Third Avenue South, Suite 290 Minneapolis, MN 55401-­2520 http://www.upress.umn.edu Printed in the United States of America on acid-­f ree paper The University of Minnesota is an equal-­opportunity educator and employer. 28 27 26 25 24 23 22 21 20 19 10 9 8 7 6 5 4 3 2 1

Library of Congress Cataloging-­in-­Publication Data Names: Halley, Janet E., editor. | Kotiswaran, Prabha, editor. | Rebouché, Rachel, editor. | Shamir, Hila, editor. Title: Governance feminism : notes from the field / edited by Janet Halley, Prabha Kotiswaran, Rachel Rebouché, Hila Shamir. Description: Minneapolis : University of Minnesota Press, [2019] | Includes bibliographical references and index. Identifiers: LCCN 2018020501 (print) | ISBN 978-0-8166-9849-3 (hc) | ISBN 978-0-8166-9850-9 (pb) Subjects: LCSH: Feminism—­Political aspects. Classification: LCC HQ1236 .G68 2019 (print) | DDC 305.42—­dc23 LC rec­ord available at https://­lccn​.­loc​.­gov​/­2018020501

Contents

Preface  ix

Janet Halley, Prabha Kotiswaran, Rachel Rebouché, and Hila Shamir

PART I Feminism Wields the Sword

1 Feminist Governance and International Law: From Liberal to Carceral Feminism  3 Karen Engle

2 The Politics of Sex, Rights, and Freedom in Contemporary Anti-­trafficking Campaigns  31 Elizabeth Bernstein

3 The Charybdis of Rape Myth Discourse  55 Helen Reece

4 Governance Feminism in New York’s Human Trafficking Intervention Courts  83 Amy J. Cohen and Aya Gruber

5 An Accidental Governance Feminist: An Interview with Kate Mogulescu  113 Amy J. Cohen and Aya Gruber

6 The Unintended Consequences of Domestic Violence Criminalization: Reassessing a Governance Feminist Success Story  124 Leigh Goodmark

PART II The Long March through the Institutions

  7 Governing Sex through Bureaucracy  159 Jacob Gersen and Jeannie Suk Gersen

  8 Feminism, Law, and Epidemiology in the AIDS Response  180 Aziza Ahmed

  9 Contesting Feminism’s Institutional Doubles: Troubling the Security Council’s Women, Peace and Security Agenda  200 Dianne Otto

10 Sex Quotas and Burkini Bans  230 Darren Rosenblum

PART III Ideological Trajectories for GFeminists

11 From Bad to Worse via a Successful Constitutional Challenge: The Tragedy of Feminist Engagement with Prostitution Law Reform in Canada  263 Mariana Valverde

12 “You Play, You Pay”: Feminists and Child Support Enforcement in the United States  287 Libby Adler and Janet Halley

13 Governance Feminism in the French Republic: Veils, Parité, and Feminists  317 Maleiha Malik

14 Gay Governance: A Queer Critique  344 Aeyal Gross

PART IV Postcolonial Feminists in Global/Local Struggle

15 Governance Feminism’s Others: Sex Workers and India’s Rape Law Reforms  377 Prabha Kotiswaran

16 A Cry for Madness: Governance Feminism and Neoliberal Consonance in Pakistan  407 Vanja Hamzić

17 Finding and Losing Feminism in Transition: The Costs of the Continuum Hypothesis for Women in Colombia  434 Isabel Cristina Jaramillo Sierra

18 Follow the Numbers: Global Governmentality and the Violence against Women Agenda in Occupied Palestine  479 Rema Hammami

19 Indebted: The Cruel Optimism of Leaning in to Empowerment  505 Vasuki Nesiah

Acknowledgments  555 Contributors  561 Index  567

This page intentionally left blank

Preface JANET HALLEY, PRABHA KOTISWARAN, RACHEL REBOUCHÉ, AND HILA SHAMIR

The essays collected here and in the companion volume to this book, Governance Feminism: An Introduction,1 make a broad feminist commitment to critical description and assessment of feminist engagements with power. But the immediate spark that got these books going was struck many years ago, in a conversation between two of the editors, Rachel Rebouché and Janet Halley, when Rachel was a law student at Harvard Law School and Janet was her teacher. Rachel had just returned from a job in an international feminist nongovernmental organization (NGO) that was distributing a pamphlet for local communities in a sub-­Saharan African country. Rachel ruefully observed to Janet that the pamphlet’s glossary defined “gender,” “patriarchy,” and “violence” in terms that could have been lifted directly from a dominance feminist script. This was an arresting observation. It exposed to both of us a feature of the then-­new network of international/transnational feminist NGOs: feminists organized globally with sufficient strategy, tactics, resources, and political will to have programmatic governing agendas for their internal life—­agendas that precluded precisely the fervent debate over gender, patriarchy, and violence that characterize life in feminist theory. The four of us were then deeply involved in a classic intrafeminist struggle between a dominance feminist legal project and its socialist/ leftist/postmodern-­feminist opposition. This is a deeply embedded opposition within second-­wave United States feminism; it made its first ix

x

Preface

spectacular appearance in the so-­called porn wars of the early 1980s and has since reappeared—­often featuring the same players—­in a range of issues, from domestic violence (DV) to sexual harassment, prostitution/trafficking, and rape/sexual violence/gender-­ based violence. The dominance ­feminist understanding is that these are all exemplary or paradigmatic instances of a structural social hierarchy organized as sexuality, in which sexuality itself manifests as male domination and female subordination. These are strong structuralist accounts, in which all things m—­ men, masculinity, maleness—­ dominate all things f—­women, femininity, femaleness, so that sexuality collapses into the m/f binary.2 Dominance feminist projects tend to envision crime-­and-­punishment solutions—­hence the term “carceral feminism,” coined by Elizabeth Bernstein,3 to describe their policy prescriptions and the institutional responses they have achieved. And increasingly with the rise of international/transnational feminist networks, they propose universalistic claims about women’s subordination that seek to transcend distributional differences. The socialist/leftist/postmodern-­feminist response is that the m/f binary, the model of power as entirely top-­down, and the structurally exceptional status of sexuality as the pervasive fact about social life are all vastly underinclusive of what is really going on in sex, gender, and sexuality; that the nested wrongs of DV, sexual harassment, prostitution/trafficking, and rape/sexual violence are forced into a Manichean oversimplification by dominance ­feminist theory; and that feminist theory and policy need ways to track the staggering complexity with which sexual pleasure and danger4—­and other social harms and benefits that may have no direct relationship to sexuality—­are distributed in social life. The particular form of the opposition that we were involved in together when this project got under way was prostitution/trafficking. Dominance feminists had recently gained significant new ground in the United States and in the international legal order as new anti-­ trafficking institutions were built out from U.S. federal law and a then-­new international anti-­trafficking treaty. To the extent that they were able, dominance feminists infused these new legal institutions with their vision of prostitution as per se coerced. They called themselves abolitionists in order to don the moral mantle of slavery abolition activism of the nineteenth century and to emphasize that their

Preface

xi

goal was, and continues to be, the elimination of prostitution from the social field. But unlike slavery abolitionists, who aimed to eliminate from the legal order the opprobrious legal relationship of chattel slavery, these neo-­abolitionists turned to criminal prohibition to punish pimps and johns until prostitution loses all social existence. We found ourselves engaged in an academic and activist effort to disturb this picture.5 We looked for the human complexity in the sale of sexual access and sexual services and resisted the abolitionists’ inattention to sex workers’ strategic capacity; the punitiveness of their agenda and their inattention to its legitimation effects on non–­ sex trafficking and to its endangerment of sex workers who, under criminalization regimes, are pushed farther underground into more risky markets; and the ideologically objectionable bedfellows that they cultivated with their focus on criminalization. But more acutely than in earlier iterations of this repeated feminist opposition, this time we experienced ourselves as developing a governance agenda, one that would seek to make prostitution into a viable form of labor rather than suppress it in the name of abolishing it, and that would go toe-totoe with dominance feminists for control over real-­world legal levers.6 We experienced the struggle—­for the first time—­as involving a struggle over governance. We put the label “Governance Feminism” (GF) on what we were witnessing and producing and, together with Chantal Thomas, wrote an article in which we introduced the term while limiting it to projects focused on our initial areas of investment—­sex work/prostitution/trafficking and rape—­and our initial normative commitment: providing a feminist critique and feminist pushback against the dominance feminist agenda in those two areas of concern.7 As Governance Feminism: An Introduction and this book make clear, we have since then expanded our conception of GF to include the whole range of feminist ideologies and tools for managing human life that actual feminists have promoted and engaged.8 At the core of our argument, then and now, is an exhortation to ourselves and other feminists facing the daunting challenges raised by the opportunity to be part of governance to think in terms of distributional consequences, not in terms of theoretical absolutes, when considering the value of any particular feminist success and the danger of any particular feminist defeat. We are pleased to ­offer both books as efforts, assembled over many years of teaching,

xii

Preface

writing, conferencing, and activism, to provide road maps to a phenomenon we think of as Governance Feminism: GF.

Defining and Engaging Governance Feminism The basic claim here is that feminists now walk the halls of power.9 This is by no means true of all feminists or all feminisms: some forms of feminism disqualify their proponents from inclusion in the power elite. But one can get a job in the United Nations, the World Bank, the International Criminal Court, the local prosecutor’s office, and the child welfare bureaucracy for espousing various strands of feminism. Exactly what forms of feminism “make sense” to power elites as they gradually let women in or are forced to make way for them? What happens when feminists and feminist ideas find their way into legal institutions and change legal thought and legal operations? Whose NGOs get funding from Congress, from international aid and development agencies, or from ideologically driven private donors? Once feminists gain a foothold in governance, what do they do there, and which particular legal forms are they most heavily invested in? What are the distributive consequences of the partial inclusion of some feminist projects? Who benefits and who loses? Can feminism foster a critique of its own successes? By GF, we mean every form in which feminists and feminist ideas exert a governing will within human affairs—­to follow Michel Foucault’s definition of governmentality, every form in which feminists and feminist ideas “conduct the conduct of men.”10 Of course, that includes not only male human beings but all of us; and not only all human affairs but also human-­inflected processes like knowledge formation, technology, and even the weather. We wish this book and Governance Feminism: An Introduction could address the full range of GF efforts, but we have granted ourselves license to address only a subset of them. In Governance Feminism: An Introduction, we concentrated on efforts feminists have made to become incorporated into state, state-­like, and state-­affiliated power. Here we continue that examination and extend it to governance without a state: for instance, sprawling governance networks managed by law-­like and private international organizations dedicated to health, security, and development; public-­ health expertise, epidemiological characterizations of the social world,

Preface

xiii

and social statistics; NGOs as a distinctive form of nonstate governance; private corporations; and broadly diffuse but patterned practices of intrafeminist policy debate.11 Though we think it is useful to generalize so far as to claim that GF exists, the category encompasses highly heterogeneous elements. GF is not one single thing; it does not have a life of its own. It is a useful heuristic category but only that. We keep discovering how differentiated various GF projects are and how complexly feminist individuals, organizations, movements, and ideas contribute the energy that can produce changes in governmental practice. When we speak of governance feminist projects doing something, therefore, we will speak not of GF but of GFeminists. Feminism is by aspiration an emancipatory project, and GF is one of many feminist efforts to discover pathways to human emancipation. In the process, GFeminists have been, in some cases, highly successful in changing laws, institutions, and practices, very often remarkably for the better. Just scan that canonical first-­wave manifesto, the 1848 Seneca Falls Declaration of Sentiments,12 for once-­impossible, now well-­ established changes in the legal status of U.S. women: the right to vote; the rights of married women to form contracts, to sue and be sued, to acquire and manage separate property, to select their place of residence, to be criminally responsible for their own actions, to seek a divorce and to seek child custody on formally equal footing with husbands and fathers, and other powers formerly denied to them by coverture; to formally equal access to paid employment; to formally equal access to “wealth and distinction” and to the professions; and to access to education. These are all basic elements of a liberal-­feminist agenda for women. Women have devoted entire lifetimes to achieving them. None of them came easy. They are not complete emancipation, surely. But compared with categorical exclusion from all franchise and from the public sphere, and compared with coverture, they are immense achievements attributable almost entirely to GFeminist efforts. One reason to describe GF is to be clear about its immense emancipatory achievements. But in our view it has also done some damage: some GF projects strike us as terrible mistakes; others have unintended consequences that are or should be contested within feminist political life. As some GF projects become part of established governance, we find ourselves worrying about them more, or differently, than we did when they were

xiv

Preface

unorthodox, “outsider” ideas. We are, therefore, inviting a robust discussion within feminism and between feminism and its emancipatory allies, about which elements are emancipatory and which may, after all, be mistakes. Moreover, many feminist visions of emancipation have been left at the station when various governance trains took off: what Kerry Rittich calls the “selective engagement” of feminist ideas into governmental power has left some diamonds in the dust.13 Sometimes selectivity so overwhelms engagement, or defeat so swamps success, that—­despite feminists’ best efforts—­a governance project simply should not be described as feminist at all. Sometimes the result will be vaguely recognizable but so alien, so transformed by adverse political forces, that the best term for it might be Nancy Fraser’s designation, “feminism’s uncanny double.”14 Figuring this out without evading responsibility is one reason to stick with the term GF: it pushes us to take stock of the inclusions and exclusions—­and the upsides and the downsides—­across their full range. As we have advanced the idea that GF now exists and tried out different ways of assessing it, we have often encountered feminist resistance. The first and most persistent form of resistance we have encountered is based on an idea that governance is per se bad, often expressed as an understanding that our describing GF is identical with denouncing it. We do not think it is a gotcha to say that feminism rules. We think GF exists, and that naming and describing it are almost always empowering for feminists, and more empowering for them than for their opponents. We also think that the question of normative assessment is highly situational, various, and necessarily—­even more than descriptive work—­politically motivated in distinct ways for differently situated feminists. We do not pretend to have a lock on normative assessments of GF: our goal here, instead, is to make them possible and to place them in a rich discussion among feminists and between them and their left allies. And, of course, we do not think feminists shoulder more responsibility than other aspirational projects focused on governance. This book focuses on feminism because it matters so much to us, not because its will to power is more suspect than that of, say, lesbian, gay, bisexual, and transgender (LGBT) politics or movements to reframe ability and disability.

Preface

xv

Meanwhile, we think that foreclosing the space between describing and assessing the consequences of feminist engagement with law, and of governance more broadly, is a gravely disabling position for a politically and legally engaged emancipatory movement to adopt. Taking the stance that describing GF is so dangerous that it cannot and should not be undertaken, or the stance that merely describing it is condemning it, comes with a cost: if GF does exist, these moves make it harder to engage affirmatively or critically. Feminists seek to rule for emancipatory purposes, and the tools they find in governance often reveal their best guesses as to how to move toward an emancipatory future. Understanding how this is working seems crucial to deciding how it should proceed going forward. We think that describing GF is a prerequisite for assessing it—­and that our assessments can be affirmative as well as troubling and even alienating. We predict that they will most often be riven between affirmation and alienation. We propose that inhabiting that engaged ambivalence is morally challenging and deeply at odds with a rhetorical renunciation of all feminist will to power. We are completely open to—­but ourselves right now do not draw—­ the conclusion that involvement in governance is intrinsically bad and therefore to be avoided. Pure outsiderism was once a hallmark of radical politics in the United States, including radical feminism. Alice Echols’s gripping historical account, based on interviews with dozens of feminists who had been active in the movement in the late 1960s and early 1970s, makes it clear that radical feminism then was radical in two quite different senses of the word: it stood radically outside the political settlement of its time, demanding wholesale transformation by acts of acute resistance and sometimes even violence; and it rejected class, race, and other axes of oppression to focus solely and exclusively on male domination and female subordination.15 You could call these stances, respectively, oppositionism and exclusivism. Radical feminism of the late 1960s in the United States shared oppositionism with many left movements of the time, but its embrace of feminist exclusivism was a cause of schism from them. The animus against seeking any change inside the state was acute. It was militancy, radical transformation, and the struggle to purify feminist theory and to prefigure emancipation in the life of feminist organizations (all then, among

xvi

Preface

radical feminists, terms of praise) against reformism, collaboration, incrementalism, bourgeoisification, and selling out (all equivalently terms of condemnation). As we wrote this, leftists and progressives in the United States and around the world were bracing to resist Donald J. Trump, the president of the United States. It is very possible that the shock of his policies will turn feminists once again away from the state and back to the search for modes of pure resistance. But until that happens, if it does, we think the contrast between the current stance of many feminists vis-­ à-­v is the state and that of radical feminism of the late 1960s is so stark as to throw a bright light on a background assumption maintained by feminists in recent decades and likely to be maintained for the foreseeable future: that we can and should engage with the state not only as a target but as a tool. Indeed, the turn of radical feminism to the state over the course of the 1970s and early 1980s—­abandoning oppositionism but retaining feminist exclusivism—­was a remarkable artifact of feminist creativity. And even if some feminists go back to militancy in a radically redrawn political map, others will refuse that path; meanwhile, feminism will live on inside the GF projects that have been developed so far. More likely, significant feminist energy will be devoted to defending and, where possible, advancing the role of feminism in the state and state-­like apparatuses.

Toward an Ethics of Responsibility We think it is a moral and political judgment for every feminist to make, whether to opt for outside styles or inside ones.16 For ourselves, and for now, we remain committed to a paradoxical and unstable mixed position: critical and disenchanted engagement. And we draw from Max Weber, in his famous essay “Politics as a Vocation,” a series of tools that we find crucial for dealing with the opportunities and dangers that attend this stance. The crux lies in the relationship between what Weber called an “ethics of conviction” and an “ethics of responsibility.”17 As Weber distinguishes these ethical attitudes from each other, the former is the will to do what is right, ruat coelom—­to preserve the purity of one’s intentions no matter the damage they occasion—­while to inhabit the latter “you must answer for the  .  .  . consequences of your actions.”18 To

Preface

xvii

engage governance, Weber reminds us, is to make use of force: his vision in “Politics as a Vocation” is highly inhospitable to enchanted conceptions of the state, including conceptions of the state as a direct means to human emancipation. Engaging the violence that law and other elements of the state necessarily put into motion is inevitable for someone with a vocation in politics, whether one invokes women’s welfare to justify a bombing raid or engages in the more prosaic, more managerial “daily grind.”19 Figuring out consequences even in retrospect is hard work: calling it a “cost/benefit analysis” makes it sound easy. Even dubbing it a “distributional analysis”—­which sounds a lot harder—­does not quite capture the challenge. But we use those terms because they describe the process that we think must come before we can decide how to answer for the consequences of our actions—­and how to continue to act. This book asks: How do we, as feminists, understand our feminism once we acknowledge our immersion in the uncontainably complex dynamics of law and its sister institutions? Weber asks us to own—­rather than renounce—­the power we lay hands on: Anyone who wishes to engage in politics at all, and particularly anyone who wishes to practice it as a profession, must become conscious of these ethical paradoxes and of his own responsibility for what may become of him under the pressure they exert. For, I repeat, he is entering into relations with the satanic powers that lurk in every act of violence.20

An ethics of conviction can lead us to political engagement, Weber argues, but—­once we are there—­can abandon us to our sense of inner virtue. There is no problem with that if the goal is the salvation of individual souls; but if it is political transformation, we face “quite different tasks, tasks that can only be accomplished with the use of force.”21 Weber provides a very chilling warning here that engagement in politics can be fully responsible only if one is willing to look down and behold the blood on one’s own hands. This can take the form he specifies—­of involving one’s self in the use of force—­and in many others, especially what one could call the five C’s: collaboration, compromise, collusion, complicity, and co-­optation.22 Political work is work in struggle with one’s opponents and often requires one to accept their

xviii

Preface

victories as the price of one’s own. And the five C’s can change you: existentially, you can be transformed into a person who accepts and even loves a settlement that, once, you would have resisted. For all his acknowledgment that being politically engaged cuts off retreat to “clean hands” stances, Weber suggests that the turn toward an ethics of responsibility can lead back to ethical conviction—­ chastened now by a conscious effort to become aware of the unknowable complexity of cause and effect, of collaboration and resistance, and of power and powerlessness in a world of proliferating consequences: I find it immeasurably moving when a mature human being—­whether young or old in actual years is immaterial—­who feels the responsibility he bears for the consequences of his own actions with his entire soul and who acts in harmony with an ethics of responsibility reaches the point where he says, “Here I stand, I can do no other.” That is authentically human and cannot fail to move us. For this is a situation that may befall any of us at some point, if we are not inwardly dead. In this sense an ethics of conviction and an ethics of responsibility are not absolute antitheses but are mutually complementary, and only when taken together do they constitute the authentic human being who is capable of having a “vocation for politics.”23

This book invites feminists to engage our involvement in actual, real-­ world governance with an attitude imbued with this ethics of responsibility, in the hope that—­as we confront our involvement not only in the big decisions but in the daily grind—­we can sometimes find that disenchanted conviction that can say “‘Nevertheless!’ despite everything.”24

The Structure of This Book We have organized this book into four conversations among our contributors. Part I, “Feminism Wields the Sword,” confronts the large roles that crime and punishment, largely focused on sexual or gender-­ based violence, play in GF projects of recent decades. Here our contributors explore the ideological and political conditions under which this branch of GF became so robust. We then turn to another face of GFeminism: feminists finding in unspectacular bureaucratic tools the leverage they are seeking. This is Part II, “The Long March through the

Preface

xix

Institutions.” In Part III, “Ideological Trajectories for GFeminists,” we present essays that emphasize the political dynamics, strategic and tactical dilemmas, and ethical challenges that feminists and LGBT activists must negotiate to play on the governmental field. Part IV, “Postcolonial Feminists in Global/Local Struggle,” turns to feminist interventions in postcolonial legal and political orders. These include studies of postcolonial feminists working in GF mode within the postcolonial state, inside the global network of UN agencies and NGOs, and in policy spaces opened up by conflict, postconflict, and occupation. In some ways our four-­part structure falls short. We expected the economic family to appear more often in our contributors’ main concerns and had planned a whole section devoted to this structurally crucial, highly gendered site of GFeminist labor. Leigh Goodmark’s essay on domestic violence criminalization in the United States (chapter 6), Libby Adler and Janet Halley’s examination of child support enforcement in the United States (chapter 12), and Vasuki Nesiah’s assessment of postconflict women’s empowerment projects in Sri Lanka (chapter 19) all address this domain, but otherwise our yield in this area was low. There are, indeed, some very suggestive affinities among these essays in moving the needle on understanding the role of the family in neoliberal economic orders, and of GFeminists in both. But some key essays in this department got away, and the larger project will have to wait for another day. Race, ethnicity, and national difference could have constituted a distinct section, but we decided that the several essays that address these dimensions of power and resistance had stronger claims to be in the parts where they now sit. For essays directed to these overlapping and cross-­cutting distributional axes, identifications, and ideological struggles, we hope readers will turn to essays contributed by Goodmark, Adler and Halley, Maleiha Malik (chapter 13), Isabel Cristina Jaramillo Sierra (chapter 17), Darren Rosenblum (chapter 10), and Rema Hammami (chapter 18). In the remainder of this Preface, we reflect thematically on what we have learned about GF from the essays collected here.

The Rise of GF and the Fall of Economic Feminism In Governance Feminism: An Introduction, Halley argues that the rise of dominance feminism as a force to be reckoned with in U.S. political

xx

Preface

life depended on its convergence with liberal feminism over sexual violence as a centerpiece of feminist organizing and with an embrace of criminalization that had—­for very different reasons—­t he full support of neoliberals and social conservatives.25 Dominance feminism was born in part through its repudiation of socialist, Marxist left traditions and alliances. The left-­liberal feminists committed to redistributive social policy—­the social welfare New Dealers—­were rendered irrelevant in the liberal-­feminist turn to sexual violence and were actively opposed by the social conservatives and neoliberals in whose policy space the new dominance/liberal feminist alliance was at least provisionally welcomed. And so this set of convergences and alliances, explicit and tacit, operated to foreclose the space for a socialist and/or redistributively focused feminism at the governance level. Halley goes on to argue that—­inasmuch as the United States is currently the sole global superpower—­its feminists had entrée all over the world on transnational routes of circulation, and that this shift to sexual violence often happened in international, transnational, and non-­U.S. settings in part through the privileged circulation of U.S. feminist ideas. In Part I of this book, we supplement that analysis with the two essays that focus not solely on American feminism but on feminists active on international and transnational planes. Karen Engle (chapter 1) and Elizabeth Bernstein (chapter 2) together show how the rise of carceral feminism—­feminists focused on developing a crime-­a nd-­ punishment approach to sexual and/or gender-­based violence—­found a comfortable niche in neoliberal and social conservative policy spaces. Tracing the rise of sexual/gender-­based violence in international law, Engle goes back to the early UN women’s conferences to show how structural bias feminism (her term for what we are calling dominance feminism) converged with liberal feminism over sexual violence, an emerging category at that time, and met resistance from Third World feminists who sought a redistributive economic agenda and a focus on what we would now call global economic inequality. The emerging context in which the former managed to prevail over the latter was the rapid invention and build-­out of the new international criminal order, in which a focus on sexual violence in armed conflict—­and its criminalization, prosecution, and punishment—­became lead projects. Third World feminists had to accept a compromise in which “culturally sensitive universalism” would unify women all over the world as victims

Preface

xxi

of sexual violence (with due acknowledgment of cultural differences in defining and sanctioning it). Violence against women morphed into sexual slavery; assimilated subcategories such as female genital mutilation, rape in armed conflict, prostitution understood as categorically coerced, human trafficking, child marriage, dowry practices, pornography, and so on; and morphed again (to be more inclusive) into gender-­ based violence. Complementing Engle’s analysis, Bernstein’s essay shows how the rise of anti-­trafficking as a special project within the United States and in the form of a major UN treaty rode on an upswelling of carceral feminist social-­movement activism that converged with liberal feminist organizational capacity and evangelical moral-­rescue social mobilization. The result, as she notes, was the “eclipse” of an economically attuned struggle for sex workers and migrant rights and the institutionalization of criminal-­based, largely feminist-­abolitionist approaches to prostitution. As a result of the developments that Halley, Engle, and Bernstein set out, GF in its sexual violence mode has a big blind spot for distributive consequences. It was in the crucible of our struggle with dominance ­feminist policy victories on prostitution and anti-­trafficking, and, for Halley and Engle, on sexual violence in armed conflict, that we discovered how much critical power to unspool this historical abandonment of left-­redistributive thought lay in the tools that we call “doing a distributional analysis.” We give a step-­by-­step ideal-­typical “how to” manual on doing a distributional analysis, with some basic grounding in its theoretical motives, in the Conclusion to Governance Feminism: An Introduction.26 In this book, examples abound: see the essays by Aziza Ahmed (chapter 8), Amy Cohen and Aya Gruber (chapters 4 and 5), Goodmark, Aeyal Gross (chapter 14), Jaramillo Sierra, Prabha Kotiswaran (chapter 15), and Nesiah.

Critique and Engagement Many of the essays collected here offer an overarching ideological critique, while others are deeply engaged in specific GF projects on the ground. Adler and Halley, Ahmed, Bernstein, Engle, Gross, Hammami, Vanja Hamzić (chapter 16), Jaramillo Sierra, Kotiswaran, Malik, and Nesiah, while clearly politically and normatively engaged, step back

xxii

Preface

from the struggles that they describe to map them critically. But other contributors focus primarily on the questions facing activists, and they take more or less activist stances. Cohen and Gruber, for example, show the range. They first provide an ideological history of anti-­trafficking diversion courts in New York City, where dominance feminists committed to feminist neo-­ abolitionist politics built an institutional forum that was then infiltrated by their fiercest opponents within feminism: pro-­sex feminists looking for ways to revive state-­based redistribution to the poor. Prostitution diversion courts became the sites for addressing trauma on a theoretical basis that is pure dominance feminist, but, paradoxically, opened space for motives that are left/redistributive. Cohen and Gruber’s follow-­on piece showcases a single GFeminist—­Kate Mogulescu—­who helped build this paradoxical space, and the interview displays her remarkably fine sense of the opportunities, frustrations, and co-­ optations that she enjoyed and suffered in her work there. Helen Reece (chapter 3), Goodmark, Mariana Valverde (chapter 11), and Dianne Otto (chapter 9) all offer trenchant, though highly particularized, windows into GFeminist activism done in the key of engaged academic work. Reece—­who died while this book was in preparation and to whom we dedicated Governance Feminism: An Introduction—­wrote the essay included here from the trenches. Reece had presented, at the London School of Economics, her home institution, a critical analysis of a dominance feminist GF project that installed a training manual on “rape myths” into the British social bureaucracy’s self-­management apparatus. She got intense pushback, including an online petition protesting the London School of Economics for hosting the event. Here she replies—­line by line, citation by citation—­to some of her critics. We are proud to include this piece because it is a slice of a real-­world struggle over the levers of governmental micropower. Goodmark—­who is a national leader in domestic violence response in the United States—­offers a course-­correction internal critique of a whole range of GF effects that have been achieved in this distinctively feminist-­built legal institution. We think her essay exemplifies the willingness to own the problems produced by one’s solutions, and to attempt to solve them in turn, that we prize in critically engaged activism.

Preface

xxiii

Like Goodmark, Valverde is a nationally recognized feminist leader engaged in internal feminist critique. A Canadian socialist feminist, Valverde uses her pages in this book to take the long, strategic view of sex-­work feminist law reform victories and defeats in Canada. She captures the complex planning/adaptation problem faced by feminists who win victories in the Supreme Court only to awaken the next morning to find themselves faced with newly motivated conservative and feminist opposition. And Otto, who over a career in international law has provided a queer, feminist, pacifist critique of GFeminist achievements in the UN Security Council, reflects here on her years as a member of the Women’s International League for Peace and Freedom, seeking to find paradoxical openings for local collective autonomy in spaces created by international law. What impedes her is not only the deep commitment of the UN’s security apparatus to legitimating, managing, and sometimes even organizing armed violence, but also the Council’s receptiveness to a dominance feminist sexual-­v iolence agenda—­one with a strong cultural feminist strand—­that calls upon the international community to rescue women by force of arms if need be. Otto argues that feminists in the Security Council setting, even though marginal ideologically and morally, are nevertheless engaged with power and can (and should) shuttle rapidly and nimbly from inside to outside, back and forth, moving a governing agenda and expanding critical capacity. Our contributors exhibit a broad range of stances along the critique/ engagement dimension. We hope readers will find here apt examples to use as they move—­as so many of us do—­among the many forms of disenchanted, critical engagement.

“Power Is Everywhere” Like many other students of the contemporary legal order,27 we are struck by the real-­world proliferation of forms of organized power that break the bounds of the classically imagined state,28 and like them we find the term governance useful to describe the resulting expansion of institutional forms and social practices that govern.29 These forms of power operate immanently as well as top-­down; facilitate and inherit state power from outside the state; and shimmer back and forth across every private/public distinction. Much of transnational law has this

xxiv

Preface

interstitial character, however much it mimes the trappings of state power. For instance, the reporting system that most treaty bodies substitute for adjudication has produced an immense discursive network of text exchange in which an array of players manage, mediate, and struggle over treaty-­based norms. When states appoint commissions to examine and report on controversial problems, hire private contractors to execute governmental functions, and incorporate—­sometimes even “certifying” as superlegitimate—­NGOs to do work on human conduct, they govern through formally nongovernmental entities. And those nongovernmental entities, we consider, are also government. But there is still more to our term governance. We turn to it to signal an effort to de-­fetishize the state as the sole source of governmental power—­the dark star of the power firmament, to be longed for and feared with equal fervor. Here we draw on a series of frame-­breaking moves from Michel Foucault’s genealogy of modern forms of gov­ ernmental knowledge/practice in his College de France lectures of 1977–­78 and 1978–­79.30 Especially now, as feminism accedes to the halls of power, we value efforts to resist taking the state on its own terms, whether as indispensable avenger or as “cold monster”—­a mystifying collaboration that, as Foucault repeatedly observes in these lectures, arouses almost instantly a “state-­phobia.”31 Descriptively, we inquire into ways in which the state, doubtless no more today than in the past, does not have this unity, individuality, and rigorous functionality, nor, I would go so far as to say, this importance. After all, maybe the state is only a composite reality and a mythicized abstraction whose importance is much less than we think. Maybe. What is important . . . is not then the state’s takeover (étatisation) of society, so much as what I would call the “governmentalization” of the state.32

Not only the sovereign, and not only the monopoly over the legitimate use of force, and not only the vox populi on the scale of the nation-­ state: Foucault’s governmentality frames the full range of power relations attentive to the “way in which one conducts the conduct of men.” The master of a ship governs it and all that rides within it; so does the single mom raising her kids in a slum or a suburb. A school administrator hired to manage sexual assault complaints within the institution

Preface

xxv

is as much a governor as the U.S. Supreme Court installing into law a feminist theory of sexual harassment: “The analysis of micro-­powers, or of procedures of governmentality, is not confined by definition to a precise domain determined by a sector of the scale, whatever its size.”33 Indeed, at the level of definition this “is not a question of scale” at all34—­t hough of course scale becomes crucial within any particular engagement. The juxtaposition of Parts I and II of this book signals, we hope, that GF projects range from highly state-­centered “discipline and punish” efforts to commandeer the state’s (theoretical or real) monopoly on legitimate violence, made manifest in the wide array of institutional roles that feminists have played in national and transnational “wars on crime.” But even within Part I we see feminists pouring feminist ideas into extremely small-­scale managerial moves at the most attenuated end of bureaucratic life. Part I addresses the role of feminists in recalibrating the law of rape (Reece); in transforming “wife beating” into “domestic violence” and building a new range of institutions to address it (Goodmark); in building an equally new anti-­trafficking regime that facilitates neoliberal globalization while delivering for dominance feminists on prostitution (Bernstein); and, in a second-­generation institutional phase of the anti-­trafficking project, rebuilding evaporated social welfare programs as trauma services—­w ith the twist that the victims double as the accused—­in “anti-­trafficking” prostitution diversion courts (Cohen and Gruber). The sheer formal inventiveness of GF—­its commitment to disciplinary as well as top-­down, punitive power—­jumps out of Part I. But Part II showcases GF operating in modes that have no crime-­ and-­punishment dimension and thus are more purely governmental in Foucault’s sense of the term. Jacob Gersen and Jeannie Suk Gersen (chapter 7) show how feminists commandeered a small office in President Obama’s Department of Education during the first decade of the 2000s and from there built a resolutely bureaucratic institutional form for addressing campus sexual harassment: the college or university Title IX office. Title IX offices do more than adjudicate claims of wrongdoing; they also promote a surveillance-­rich sexual public sphere for U.S. undergraduates, saturated with moral messages about good and bad sex. This aspect of their work more closely resembles Reece’s feminist-­ inspired social service worker training manuals and Foucault’s

xxvi

Preface

conduct books and confessional instructions than the Leviathan-­like sovereign brandishing his sword. Similarly, Ahmed shows how dominance feminist models of women’s subordination built a power/knowledge within the global response to HIV, an epidemiological commitment to a “heterosexual risk narrative” that frames women as passive and vulnerable and men as active and resilient. She shows how the epidemiological legitimation of this framework not only constructs the subjects affected by HIV but also redirects public health funding and outreach. And Rosenblum examines the ideological links between the French campaigns against Muslim women’s modest dress, quotas requiring public elections to offer slates of candidates that are 50 percent women and—­surprise!—­ rules requiring corporate boards to include a defined minimum of women members. None of these GF institutions respect a state/nonstate barrier; all of them flow seamlessly across any public/private divide that confronts them; and almost all of them seek not to suppress but to manage and indeed to produce the populations on which they are focused. One of Foucault’s motives for seeking, over the course of his career, understandings of power more subtle, mobile, and immanent than those that worshipped at the feet of that “cold monster,” the state, was his effort to evade a preordained ressentiment about power, to be open to seeing power as productive of effects without prejudging them—­or it—­to be malign.35 We share this motive. Indeed, we strive to be agnostic about whether criminal suppression or governmental management produces good or bad effects over the whole range of their operation. This is at the core of what we mean when we say, at every possible opportunity, that we do not think it is a gotcha to say that feminism rules. The struggle within feminism between dominance feminism and its alternatives—­whether they be left, socialist, postmodern, sex-­positive version, or liberal feminism, or critical race feminism, or postcolonial feminism, or more strictly socialist/Marxist feminism, or queer feminism—­is also a struggle between a Manichean, dualistic, and paranoid model of gender and sexuality and a more mobile, plural, and open-­ended set of hypotheses about the world. We do not think the dominance feminists are always wrong, just that the domination they see is not nearly as uniform and structural as they think it is. And we do not think their preferred tools produce only bad effects: some

Preface

xxvii

human conduct is so bad that it should be criminalized, if only to incapacitate and deter. But we hope, when GFeminists take this route, that they will give some attention to, and an accounting of, the terrible costs distributed by criminal enforcement. Indeed, we think that all the tools—­of punishment and of management—­produce a vast range of effects, and that GFeminists need a robust public space in which to describe and assess them. Goodmark’s frank, brave reassessment of feminist DV victories can be an example. So can Ahmed’s interest in the ways that the heterosexual risk narrative has saved some women’s lives while at the same time demonizing men of the global South as sexual predators. Both of them—­and, indeed, all our authors—­ are awake to the downsides of the upsides and the upsides of the downsides. To put it another way: a crisis in the ethics of responsibility, for one who believes she has a vocation in politics, can come up anytime. ­Moments of collaboration, compromise, collusion, complicity, and co-­optation—­the five C’s—­are endemic: the decision whether to forge ahead nevertheless, to change course, or to pull out of the game altogether is situational. We set out some of the options that GFeminists have made manifest in their writings about their work in Governance Feminism: An Introduction,36 but this book presents an even richer range of examples than we could possibly have mustered on our own.

Feminism Agonistes Weber rightly warns that anyone with a vocation to politics “is entering into relations with the satanic powers that lurk in every act of violence.”37 Among those satanic powers are the world-­changing energies released by one’s own will to power and that of one’s enemies. Part III, “Ideological Trajectories for GFeminists,” takes up this problem, with essays that track GFeminist (and, in Gross’s essay, LGBT) projects as they traverse hostile political turf. Valverde, Adler and Halley, Malik, and Gross all put left social movements onto a political map in which they confront right-­wing forces in encounters that pre­ sent them with opportunities to prevail and with the dual threat of defeat and co-­optation. Dominance feminism has accumulated a long history of a by-nowclassic collaboration that many view as a co-optation, a vivid example

xxviii

Preface

of which animates Bernstein’s essay in this volume. Turning to the state to prohibit sexual wrongdoing and finding themselves opposed by civil-­liberties and sex-­positive feminists, they discover again and again that they can make an alliance with social conservatives enforcing sexual morality and with neoliberals building a market-­d riven world in which social control through crime is a well-­accepted exception to their small-­state ambitions. It has happened so often, and with such dramatic effects, that left feminists have wondered whether there are conditions in which dominance feminists should be regarded not as progressives or left radicals but as conservatives.38 Not one of the co-­optation stories we collect in Part III follows this classic script, suggesting that co-­optation anxieties are—­or should be—­ pretty much endemic to the feminist governance project generally. Thus, Valverde shows how sex-­work feminists gained a victory in the form of a Canadian Supreme Court decision blocking the criminal suppression of sex work, only to see their analytic template cherry-­picked by a newly elected conservative government seeking justifications for an intensified, supposedly protective, legislative crime package designed to satisfy both social conservatives and the court. (Never forget: almost everything is flippable!) Note that it was not the dominance feminists but the sex-­work feminists whose ideas got co-­opted; Valverde argues that it took them by surprise and that they were simply not strong enough or well organized enough to stop it. Among her takeaway lessons: dominance abolitionist feminists and sex-­work feminists in Canada have a common enemy now and an urgent need to unite on behalf of sex workers against it. Adler and Halley examine the confluence of social conservative, neoliberal, and middle-­class women’s advocacy in support of a reconstructed child support enforcement system in the United States and show how the resulting system benefits middle-­class women and their children, does little to help poor women and their children of any race, and is highly detrimental to poor men, who can go to jail even if they cannot possibly pay child support and who are vastly disproportionately black. They follow the legislation from one iteration to the next, tracing left and centrist feminist groups to gauge their moral, strategic, and tactical motives for staying in the fight, and ask contemporary feminist readers what responsibility they seek for the upsides

Preface

xxix

and the downsides of an enforcement system that feminists helped to build. These essays raise hard questions for every GFeminist, and possibly for every activist engaged in social change: When to quit, and what alliances are tolerable? The next two essays of Part III show that postcolonial linkages, migration, international conflict, and international aid can include complex border crossings in these dynamics. Malik traces the ideological trajectory of French feminist universalism through its reaction against Muslim women’s modest dress and its engagement with the movement for parité, knitting together an image of French national identity that includes women provided that they shed particularistic (read: Muslim) identity. Malik thus observes how feminists, centrists, and nationalist right-­wing forces coincided to make both policy shifts possible. Though bans on modest dress purport to include Muslim women in the French universalistic polity (supposedly by saving Muslim women from Muslim men), Malik argues that their effect is acute exclusion and a transformation of the social meaning of their modest dress. Meanwhile, Gross extends the homonationalist critique39 to examine Israel’s use of newly established gay rights to legitimate the state vis-­à-­v is its perpetual occupation of the Palestinian Territories. He links these dynamics to the imposition of “gay conditionalities” on sub-­ Saharan African countries by the World Bank, Great Britain, and the United States, in which development funds are made available only to states that adopt pro-­gay law reforms. Gross asks: When do these incorporations of pro-­gay stances directly into the state actually improve the lives of gender and sexual minorities; when do they backfire against them; and when do they harm other, equally or even more vulnerable groups? What should a gay-­rights movement do and say about these complex consequences? Across this entire volume, our authors engage the problems of unclean hands, strange bedfellows, the five C’s, and the risk of Pyrrhic victory and of strengthening one’s enemies and harming one’s friends that inevitably attend political engagement. We submit that one of the great benefits of opening up the category GF is precisely the space it creates for ethical reflection on these hard problems.

xxx

Preface

Feminism’s Space: Local, Regional, International, Transnational In Part IV, “Postcolonial Feminists in Global/Local Struggle,” we gather essays that focus on the possibilities and challenges of GFeminism at the local and state levels in a postcolonial world. Our authors speak to feminist developments in both established democracies that were born in the wake of independence from colonial rule and in countries under­ going or emerging from prolonged periods of armed conflict, political transition, and occupation. While these postcolonial and postconflict contexts are all shaped by international feminist developments to some extent, they lie along a spectrum in terms of the extent of the influence of such international ideas on domestic feminist formations. We first discuss the most localized of these GFeminist developments with contributions in the volume by Kotiswaran and Hamzić and then elaborate on chapters by Jaramillo Sierra, Nesiah, and Hammami that speak to the growing importance of international governance regimes with a women’s or gender agenda. Several postcolonial states have long feminist traditions of their own going back to the days of anti-colonial resistance, whether that was organized along lines of nationalist, regional, or religious affinity. As Kotiswaran and Hamzić show in their essays at the beginning of Part IV, Indian and Pakistani feminists draw on a very deep local tradition of radical anti-colonial and nationalist resistance. Strikingly, both of their examples were oppositional rather than entryist in general orientation to the state; and they were far more open to Marxist influence than comparable feminist movements in the global North. It is helpful to recall at this point Engle’s observation that, at the beginning of the grand series of UN conferences on women, Third World feminists carried a left-­redistributive postcolonial critique into their encounter with First World liberal and dominance feminists. Analyzing the rich landscape of feminist formations within India, Kotiswaran invokes Partha Chatterjee’s distinction between “civil society” elites who carry out politics hand in hand with the postcolonial state and “political society” subalterns who deal with the state through mass-­mobilized reception and management of the state’s welfare bureaucracies. Chatterjee set this thesis out in The Politics of the Governed,40 elaborating the Foucauldian understanding of governance

Preface

xxxi

and providing a highly illuminating framework for describing the spaces occupied by GFeminists in the global South. Kotiswaran’s essay showcases the very active but divided political landscape in which Indian feminists struggle among themselves, with and within the state, and with their “other”—­a well-­organized movement of sex workers that decisively rejects governance insiderism—­over rape and prostitution/ anti-­trafficking. Kotiswaran’s chapter manifests the high value she places on the political-­society activism of sex workers, while observing with ambivalent admiration the dramatic entry into the state that the far more centrist Indian Women’s Movement and the radical-­ feminist abolitionist movement (allied, not surprisingly given Bernstein’s analysis, with evangelical abolitionists) have achieved. Writing on the postcolonial context of Pakistan, Hamzić mourns the passing of a first wave of creative, actively resistant feminist activism there and its replacement by internationally funded feminist NGOs following a highly standardized neoliberal-­friendly reform program. Hamzić shows how the displacement of older forms of feminist mobilization—­socialist, rich in internal differences, and sharply opposed to an increasingly repressive state—­brought organized Pakistani feminism into consonance with an Islamicized and increasingly neoliberal state. Mediating between conservative Islamic women’s activism and anguished postcolonial feminists who see the vital days of Pakistani feminism as long past, the GF formations that Hamzić examines work hand in hand with the state and international human rights bodies, offer a moderate human rights–­oriented interpretation of Islam to an eager Western audience, and carefully hew to a routinized and expertized feminist playbook. Hamzić reflects on the public emotions that attend the feminist mourning he both professes and describes: guilt, nostalgia, and a longing for the sudden outbreak of prophetic feminist madness. In a very tentatively hopeful turn at the end of his essay, he finds an alternative model in what Chatterjee would call a political-­society movement among gender-­variant groups in Lahore, the khwajasara collectives. Their political style closely resembles Indian sex-­worker mobilization as described by Kotiswaran, in their studied adoption of an oblique attitude toward the state. Perhaps prophetic madness can rekindle in that outside space. In the postconflict and occupation scenarios analyzed by the remaining essays in Part IV, domestic feminist movements must cope

xxxii

Preface

with robust and institutionalized transnational/international GF capacity. After all, the story of transnational and international GFeminist formation from the mid-­1980s forward turns to a striking degree on the fact that feminists have often gotten their most dramatic footholds by joining an institution-­building effort while it is just taking off—­which is exactly what the international/transnational space was doing then. International human rights; international peace and security; international public health; international agency response to conflict and involvement in managing postconflict and occupation; the World Bank’s shift from categorical structural adjustment policy to softer, more bottom-­up market-­making administrative efforts; the making of a new international criminal system to deal with atrocities committed in armed conflict; the invention of a new international order for dealing with human trafficking and smuggling; the worldwide wave of constitution making that ran from the early 1990s to the early 2000s: all of these and many more institutional novelties in the global legal order post-­1980 presented opportunities just at the moment that feminists worldwide “turned to the state” and state-­like institutions seeking entry. Showing up at an embryonic institution and helping to build it can be a much more promising strategy for gaining power than battering at the door of a well-­established men’s club taking the form of a political party, a government, a legislature, or a judiciary. This has meant that, in the developing world, which often must accept the presence of international and transnational governance at a much more pervasive level than would be tolerated in the global North, GF has entry to the local through global networks and institutions; can find and fund local feminist elites who are eager for the alliance; and can carry feminist ideas from one spot on the globe to another through well-­a rticulated networks of administrative governance, education abroad, UN-­based conferencing, commissions, special rapporteurs, and myriad other social-­movement and governmental technologies. Sometimes these differently scaled and spaced spheres of feminist organizing are, vis-­à-­vis each other, proverbial ships passing in the night; sometimes they engage in deep struggle or strong alliances over local or global influence; sometimes feminist ideas from afar are imposed at the tip of a spear. We think that part of the study of GFeminism must attend to the power dynamics and historical legacies of colonialism, postcolonialism, neocolonialism, neoimperialism, interlocking center/

Preface

xxxiii

periphery dynamics, and sheer alterity that bring different spaces on the globe into organized political encounters. Occupation and postconflict contexts are almost by definition sites of institutional permeability and invention and thus have been conducive to GFeminist influence from the global to the local in recent years. Examining Colombia’s transition from la violencia to the current transition toward a social settlement, Jaramillo Sierra examines the rapid build-­out of state feminism, civil-­society feminism, and political-­ society feminism. The conflict that Otto engages at the level of the Security Council, and that Engle shows in recent decades of feminist involvement in international law, played out again, mutatis mutandis, among Colombian feminists and between them and the state, as yet again left feminists carrying a social-­redistributive agenda encountered dominance feminists wielding a universalistic gender-­based-­v iolence model. And, yet again, the dominance feminist model has been more compatible with liberal centrist anti-­redistributivist approaches to the transition. Jaramillo Sierra identifies a feminist-­universalist “continuum hypothesis” in which “women have suffered most in war, and women who have suffered in war have suffered the most” because their suffering is an intensification of the sexual subordination of women in everyday life. Through a detailed analysis of the measurable distributive harms inflicted by the conflict, Jaramillo Sierra shows what it would be like to proceed, as a feminist in the Colombian transition, without the dominance feminist script in hand. Nesiah, meanwhile, analyzes the transition following the defeat of the Tamil Tiger Rebels in Sri Lanka, in which a complex mixture of postconflict, human rights, and development institutions tackle the reintegration of defeated and displaced populations. Clearly the Sri Lankan transition has been far more deeply permeated by international actors than the Colombian process. Perhaps surprisingly, it was not only the growing international/transnational transition experts ensconced in postconflict and human rights organizations but the economic development experts who led the way. A neoliberal economic-­ development agenda turning on women’s empowerment through their participation as market actors, already well established in the United Nations Population Fund (UNFPA), the UN Entity for Gender Equality and the Empowerment of Women (UN Women), the World Bank, and other international/transnational agencies and NGOs, guided the

xxxiv

Preface

establishment of an Owner-­Driven Housing Assistance (ODHA) Program for women, focused on providing them with access to titled housing, credit to finance it, and access to labor markets as individual entrepreneurs. Like Jaramillo Sierra, Nesiah sees a complex redistributive picture here, with significant resources going to meet real needs. But also like Jaramillo Sierra, she sees downsides. Just as the sexual violence “continuum hypothesis” leaves out harm to men, differential distributions among women, and opportunities for class-­based redistributions, the neoliberal/GFeminist model, relying as it does on making social justice by entrepeneurializing women, individualizes both the harm and the remedy and ignores its own costs. Debt, after all, is not only an asset but a deficit, and if women participating in the ODHA Program have to migrate to the Gulf to earn remittances to enable their families to stay one step ahead of default, their entrepeneurialization provides an apt example of Lauren Berlant’s “cruel optimism.” 41 Finally, Hammami deals with a neocolonial, not a postcolonial, setting: the occupation of the Palestinian Territories by Israel. International agencies and NGOs carrying a human rights agenda are deeply involved in managing, and indeed facilitating, this occupation, and this presence brings with it a range of GF technologies of governance. Hammami focuses on DV institutionalization in a setting that offers scant space to political-­society feminist players that have made such strong showings in Kotiswaran’s, Hamzić’s, Jaramillo Sierra’s, and even Nesiah’s accounts. On the contrary, this DV program arrives courtesy not of local feminists but of USAID, WHO, UNFPA, UNAIDS, the World Bank, and UNICEF, which arranged for a private company to devise the survey of DV in the Occupied Palestinian Territories (oPt) and got the Palestinian Central Bureau of Statistics to adopt it. The survey—­derived from GFeminist efforts to count pervasive but nonsevere low-­level physical and emotional conflict in the home as violence—­ typically yields results that are problematic from a dominance feminist point of view, because both men and women report very high rates of domestic friction (defined as violence). But the version of the survey adopted for the oPt inquires only into women’s, not men’s, experiences as victims. Its shockingly high rates of DV in Palestinian families have had a number of distributive consequences, Hammami concludes. On the upside, the statistics route funding and institutional capacity to address real DV needs and therefore do save lives. But

Preface

xxxv

Hammami counts up a devastating list of downsides: the numbers vastly exaggerate the incidence of DV, predetermine that it follows a dominance feminist model of male aggression against female victimhood, render Palestinian women as victims needing rescue from their men and culture, demonize Palestinian men as sexual predators, and award the civilizational banner to Israel. Hammami’s essay is a wakeup call to GFeminists: the time may have come for us to follow in the footsteps of the homonationalist critique, to trace the imbrication of feminism into geopolitical conflict.42

Notes 1. Janet Halley, Prabha Kotiswaran, Rachel Rebouché, and Hila Shamir, Governance Feminism: An Introduction (Minneapolis: University of Minnesota Press, 2018). 2. For a discussion, see Janet Halley, Split Decisions: How and Why to Take a Break from Feminism (Princeton, NJ: Princeton University Press, 2006), 23–­26. 3. Elizabeth Bernstein, “The Sexual Politics of the ‘New Abolitionism,’” Differences: A Journal of Feminist Cultural Studies 18, no. 3 (2007): 128–­51.  4. Carole S. Vance, ed., Pleasure and Danger: Exploring Female Sexuality (Boston: Routledge & Kegan Paul, 1984). 5. For other critical assessments of the criminal turn in feminist law reform, see Kristin Bumiller, In an Abusive State: How Neoliberalism Appropriated the Feminist Movement against Sexual Violence (Durham, N.C.: Duke University Press, 2008); Alice M. Miller and Mindy Jane Roseman, Beyond Virtue and Vice: Rethinking Human Rights and Criminal Law (Philadelphia: University of Pennsylvania Press, 2018); David M. Halperin and Trevor Hoppe, eds., The War on Sex (Durham, N.C.: Duke University Press, 2017). 6. Prabha Kotiswaran, ed., Revisiting the Law and Governance of Trafficking, Forced Labor and Modern Slavery (Cambridge: Cambridge University Press, 2017); Hila Shamir, “A Labor Paradigm for Human Trafficking,” UCLA Law Review 60 (2012): 76–­136. 7. Janet Halley, Prabha Kotiswaran, Chantal Thomas, and Hila Shamir, “From the International to the Local in Feminist Legal Responses to Rape, Prostitution/Sex Work and Sex Trafficking: Four Studies in Contemporary Governance Feminism,” Harvard Journal of Law and Gender 29 (2006): 335–­423. 8. For a discussion, see Halley et al., Governance Feminism: An Introduction, 3–­ 6. For other studies of what we are calling GF in addition to those cited in note 5, see Kate Bedford, Developing Partnerships: Gender, Sexuality, and the Reformed World Bank (Minneapolis: University of Minnesota Press, 2009); Victoria Bernal and Inderpal Grewal, eds., Theorizing NGOs: States, Feminisms, and Neoliberalism (Durham, N.C.: Duke University Press, 2014); Elizabeth Bernstein, “Militarized Humanitarianism Meets Carceral Feminism: The Politics of Sex, Rights, and Freedom in Contemporary Anti-­Trafficking Campaigns,” Signs 36 (2010): 45–­71; Bumiller, In

xxxvi

Preface

an Abusive State; Gülay Caglar, Elisabeth Prügl, and Susanne Zwingel, eds., Feminist Strategies in International Governance (New York: Routledge, 2013); Hester Eisenstein, Inside Agitators: Australian Femocrats and the State (Philadelphia: Temple University Press, 1996); Sara R. Farris, In the Name of Women’s Rights: The Rise of Femonationalism (Durham, N.C.: Duke University Press, 2017); Lila Fernandes, Transnational Feminism in the United States: Knowledge, Ethics, and Power (New York: New York University Press, 2016); Nancy Fraser, Fortunes of Feminism: From State-­Managed Capitalism to Neoliberal Crisis and Beyond (Brooklyn, N.Y.: Verso, 2013); Dorothy L. Hodgson, ed., Gender and Culture at the Limit of Rights (Philadelphia: University of Pennsylvania Press, 2011); Karen Knop, ed., Gender and Human Rights (Oxford: Oxford University Press, 2004); Nivedita Menon, Recovering Subversion: Feminist Politics beyond the Law (Urbana: University of Illinois Press, 2004); Sally Engle Merry, Human Rights and Gender Violence: Translating International Law into Local Justice (Chicago: University of Chicago Press, 2006); Maitrayee Mukhopadhyay, Feminist Subversion and Complicity: Governmentalities and Gender Knowledge in South Asia (New Delhi: Zubaan Books, 2017); Joyce Outshoorn and Johanna Kantola, eds., Changing State Feminism (Basingstoke, U.K.: Palgrave Macmillan, 2007); Shirin M. Rai and Kate Bedford, eds., “Feminists Theorize International Political Economy,” special issue, Signs 36, no. 1 (2010); Shirin M. Rai and Georgina Waylen, Global Governance: Feminist Perspectives (Basingstoke, U.K.: Palgrave Macmillan, 2008); Annelise Riles, The Network Inside Out (Ann Arbor: University of Michigan Press, 2000); Anna Yeatman, Bureaucrats, Technocrats, Femocrats: Essays on the Contemporary Australian State (Sydney: Allen & Unwin, 1990). 9. This section is a slightly revised adaptation of passages in Halley et al., Governance Feminism: An Introduction, ix–xiv. 10. Michel Foucault, The Birth of Biopolitics: Lectures at the Collège de France, 1978–­79, trans. Graham Burchell (New York: Palgrave Macmillan, 2008), 186. 11. For an assessment of the ways in which feminism has become a driving force in consumer culture, for instance, see Andi Zeisler, We Were Feminists Once: From Riot Grrrl to Covergirl®, the Buying and Selling of a Political Movement (New York: PublicAffairs, 2016). 12. “Seneca Falls Declaration of Sentiments,” in History of Woman Suffrage, vol. 1, ed. Elizabeth Cady Stanton, Susan B. Anthony, and Matilda Joslyn Gage (Rochester, N.Y.: Charles Mann, 1887), 70–­71. 13. Kerry Rittich, “The Future of Law and Development: Second Generation Reforms and the Incorporation of the Social,” Michigan Journal of International Law 26, no. 2 (2004): 199–­243, at 223. 14. In chapter 9 of this volume, Dianne Otto approves Fraser’s expression, describing the alienated forms of feminist-­derived thinking that manages to work its way into United Nations Security Council resolutions as “feminism’s ‘strange shadowy version;’ its discursive ‘uncanny double,’ which can be ‘neither simply embrace[d] nor wholly disavow[ed].’” Otto, citing Nancy Fraser, “Feminism, Capitalism, and the Cunning of History,” New Left Review 56 (2009): 97–­117, at 114. For Engle’s discussion of this ambivalent disavowal, see chapter 1. 15. Alice Echols, Daring to Be Bad: Radical Feminism in America, 1967–­75 (Minneapolis: University of Minnesota Press, 1989).

Preface

xxxvii

16. Most of this section is a slightly revised adaptation of passages in Halley et al., Governance Feminism: An Introduction, xiv–xvi. 17. Max Weber, “Politics as a Vocation,” in The Vocation Lectures, ed. David Owen and Tracy B. Strong, trans. Rodney Livingstone (Indianapolis: Hackett, 2004), 83. 18. Ibid. 19. Ibid., 90. 20. Ibid., 91. 21. Ibid., 90. 22. Chandra Talpade Mohanty, “Sisterhood, Coalition, and the Politics of Experience,” in Feminism without Borders: Decolonizing Theory, Practicing Solidarity (Durham, N.C.: Duke University Press, 2003), 106–­19. 23. Weber, “Politics as a Vocation,” 92. 24. Ibid., 94. 25. Halley et al., Governance Feminism: An Introduction, 25–­47. 26. Ibid., 253–­67. 27. See, e.g., Orly Lobel, “The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought,” Minnesota Law Review 89 (2004): 342–­470; John Ruggie, “Global Governance” (syllabus), Harvard Kennedy School, Cambridge, Mass., Fall 2013, http://www.hks.harvard.edu/syllabus/IGA-103.pdf (accessed August 17, 2018); Benedict Kingsbury, Nico Krisch, and Richard B. Stewart, “The Emergence of Global Administrative Law,” Law and Contemporary Problems 68, nos. 3 and 4 (2005): 15–­61. For a critical assessment of the new governance, see Amy J. Cohen, “Negotiation, Meet New Governance: Interests, Skills, and Selves,” Law and Social Inquiry 33, no. 2 (2008): 503–­62. 28. As the subtitle of this section suggests, we find Foucault’s understanding that “power is everywhere” helpful as we theorize this process. Michel Foucault, The History of Sexuality: An Introduction, trans. Robert Hurley (New York: Vintage Books, 1988). 29. The first three paragraphs of this section comprise a slightly revised adaptation of passages in Halley et al., Governance Feminism: An Introduction, 3–­5. 30. Michel Foucault, Security, Territory, Population: Lectures at the Collège de France 1977–­78, trans. Graham Burchell (Basingstoke, U.K.: Palgrave Macmillan, 2007); Foucault, The Birth of Biopolitics; Alexandria Jayne Innes and Brent J. Steele, “Governmentality in Global Governance,” in Oxford Handbook of Governance, ed. David Levi-­Faur (Oxford: Oxford University Press, 2012), 716–­29. 31. Foucault, The Birth of Biopolitics, 75–­76. 32. Foucault, Security, Territory, Population, 109. 33. Foucault, The Birth of Biopolitics, 186. 34. Ibid. 35. For reflections on Eve Kosofsky Sedgwick’s reading of Foucault as endlessly trapped in the paranoid cycle tying power to ressentiment, and Halley’s sense that queer and critical legal studies can offer tentative ways out of this Manichean trap, see Janet Halley, “Paranoia, Feminism, Law: Reflections on the Possibilities for Queer Legal Studies,” in New Directions in Law and Literature, ed. Elizabeth S. Anker and Bernadette Meyler (Oxford: Oxford University Press, 2017), 136–­40.

xxxviii

Preface

36. Halley et al., Governance Feminism: An Introduction, 55–­71. 37. Weber, “Politics as a Vocation,” 91. 38. Halley, “Which Forms of Feminism Have Gained Inclusion?,” in Halley et al., Governance Feminism: An Introduction, 31. 39. See, e.g., Jasbir K. Puar, Terrorist Assemblages: Homonationalism in Queer Times (Durham, N.C.: Duke University Press, 2007); Katherine Franke, “Dating the State: The Moral Hazards of Winning Gay Rights,” Columbia Human Rights Law Review 44 (2012): 1–­46. 40. Partha Chatterjee, The Politics of the Governed: Reflections on Popular Politics in Most of the World (New York: Columbia University Press, 2004). 41. Lauren Berlant, Cruel Optimism (Durham, N.C.: Duke University Press, 2011). 42. See Farris, In the Name of Women’s Rights.

PA R T I

FEMINISM WIELDS THE SWORD

This page intentionally left blank

CHAPTER 1

Feminist Governance and International Law From Liberal to Carceral Feminism KAREN ENGLE

Feminist legal theory came to international law and discourse later than it came to many other legal fields. It primarily emerged in international human rights where, in a surprisingly short amount of time, it went from being extremely marginal to relatively mainstream. Not unrelatedly, it has grown and developed significant influence, primarily in the doctrinal areas of international humanitarian and criminal law. This chapter chronicles the trajectory of feminist engagement with international law, paying special attention to how both feminisms and feminists have played governing roles in its development and operation. I am particularly interested in why certain feminist approaches have been more influential than others. International human rights and international criminal law are themselves relatively new fields, with the former taking off in the late 1970s and early 1980s, and the latter in the 1990s. Although feminists began to make significant gains in international human rights law only in the early 1990s, some of their successes in that arena positioned them to have an impact on international criminal law in its early stages, which significantly affected the post–­Cold War interpretation and development of international humanitarian law. As within the feminist movement more generally, there were years of disagreement—­overt and tacit—­among women’s human rights advocates. The first section of this chapter will consider some of these points of difference and contention, by identifying and describing three primary approaches to women’s human rights that developed from 3

4

Karen Engle

the mid-­1980s through the mid-­1990s: liberal inclusion, structural bias, and Third World. The second section will home in on the 1993 United Nations World Conference on Human Rights in Vienna, to study an apparent consensus that emerged among women’s human rights advocates there as they began to turn much of their attention to sexual violence against women in conflict and to criminal legal responses to it. I trace this genealogy from liberal to carceral feminist approaches to international law in an effort to understand how and why a particular form of structural bias feminism became empowered over the years and what was lost in the process. In the early to mid-­1990s, it seemed that Third World feminist critiques were poised to prevail, or at least seriously affect the ability of structural bias feminisms to get a stronghold on human rights. But the end of the Cold War, a compromise around what I call “culturally sensitive universalism,” the turn to sexual violence as the principal harm of conflict, and the pursuit of criminal law as the primary response to it all functioned to quell much of the Third World feminist critiques, especially their material dimensions. I hope to revive some of those critiques, in an effort to challenge the present common sense about sexual violence in conflict, particularly as it bears on culture, sex, economic distribution, and criminalization.

Early Feminist Engagement with Human Rights The mid-­to late 1980s and early 1990s saw the first wave of feminist approaches to human rights law. As feminists began to consider ways that human rights law could respond to women’s concerns, two primary approaches emerged, which I identify as “liberal inclusion” and “structural bias.” Soon thereafter, what I call the “Third World feminist critique” developed, primarily in response to the structural bias critiques, but with roots in older North–­South struggles. I consider each of these in turn. As I do so, I read these critiques primarily as approaches, rather than as people. Indeed, any given individual might take more than one approach. In mapping these positions, I focus on feminist scholarship on international human rights law, institutions, and discourse. But prior to the explosion of feminist interest in human rights law, feminist theorists and advocates had been engaged internationally around issues



Feminist Governance and International Law

5

such as peace, education, and labor—­dating back at least to the period between the world wars. Even when the Universal Declaration of Human Rights was drafted in 1948, women’s activism played a role in ensuring, among other things, the use of mostly gender-­neutral language.1 Women in both the global South and global North had also participated, sometimes through women’s solidarity movements, in global emancipatory struggles such as anti-­slavery, anti-colonialism, and anti-­apartheid. And as early as the 1970s, many were advocating for greater attention to women in development programs.2 Outlets for some of these issues included the United Nations World Conferences on Women, held in Mexico City in 1975, Copenhagen in 1980, and Nairobi in 1985. In fact, many of the tensions and debates I consider from the late 1980s onward have roots in earlier debates among women in these fora.

Liberal Inclusion Approaches Liberal inclusionists argued that women should and could be included in international human rights law. That is, if properly applied to women as subjects of international law, international legal doctrine could assimilate women’s concerns. These approaches were largely influenced by liberal equality doctrine, and they dominated the scholarly field in the 1980s. Much of the scholarship during this period argued for doctrinal inclusion and institutional expansion.3 Liberal inclusionists argued that international human rights law required formal equality between men and women, but many also maintained that it guaranteed economic and social rights. Indeed, the 1979 Convention on the Elimination of All Forms of Discrimination against Women was often lauded for its attention to economic and social as well as civil and political rights. For proponents of inclusion, the international legal documents, doctrine, and institutions needed to assimilate women already existed. If women’s rights were not protected, it was due to a lack of enforcement, not a lack of law. Some liberal inclusionists focused on enforcement. As such, much of their work analyzed international institutions to see why mainstream institutions failed to address women’s issues. While some argued that increasing the number of women in these organizations might lead to

6

Karen Engle

greater attention to women’s needs, others aimed to have the institutions recognize that, because international legal doctrine covered women, the mandates of the institutions must follow suit. The institutions, then, should address women’s issues, and, it was thought, they could do so without major structural change. The right people or right attention within the institutions would necessarily lead to consideration of the human rights concerns of women.

Structural Bias Critiques According to structural bias feminism, simple inclusion of women in international law was impossible. This approach saw international law as constructed by and for men, with structural features that prevented their application to women. Implicit in the structural bias approach, then, was a critique of liberal inclusion. The structure of international law prevented women’s assimilation; the regime must be changed to accommodate them.4 As Charlotte Bunch put it in an early example of this view in 1990, “while this [liberal] approach of adding women and stirring them into existing first generation human rights categories [of civil and political rights] is useful, it is not enough by itself.”5 Another advocate later explained: “The fundamental challenge for the movement for women’s human rights is that it not become a reformist project: its recipe should not read, ‘Add women and stir,’ but ‘Add women and alter.’” 6 Structural bias critiques were largely, though not solely, influenced by radical feminism. At their analytical core were the assumptions that male dominance and female subordination were universal, and that they were the greatest impediment to women’s emancipation. That dominance structure, it was argued, could be found in both the doctrine and institutions of human rights. For some, the very condition of male dominance was defined by sexuality, so that male sexual domination and female sexual subordination constituted the greatest structural impediment to women’s emancipation. Structural bias approaches identified a series of dichotomies in public international law that perpetuated the inability of international human rights law to attend to women’s lives. International law’s prioritization of the state over civil society7 and of civil and political rights over economic and social rights,8 for example, was seen as evidence of the structural bias against women.



Feminist Governance and International Law

7

The most commonly discussed dichotomy was the public/private distinction. According to some critiques of that dichotomy, the distinction actually existed; because human rights law excluded from its scope the private, or domestic, sphere—­presumably the space in which women operate—­it could not fully attend to women’s lives.9 Torture, for example, was defined so as to require direct state action. Thus, human rights law would need to be reconceptualized to include the private sphere, or attend to the acts of nonstate actors. Other challenges to the public/private distinction tended not to treat it as necessarily embedded in human rights law. Rather, it was more a problem of ideology than of doctrine. Some critics argued that international law regularly entered the private sphere through, for example, regulation of the family. Moreover, these critics argued that a state’s failure to protect rights in the private sphere was not distinguishable from direct state action. Finally, they contended that the human rights regime applies a double standard when talking about women. The international legal regime would never argue, for example, that it could not intervene to ensure that states end certain forms of “private” violence, such as cannibalism or slavery.10 In this telling, the public/private distinction was structural, but perhaps not as intransigent as the first view suggested.11 For some, women’s sexual subordination was at the core of what was too often considered women’s “private” lives. Catharine MacKinnon, for example, entered the human rights discussion in the early 1990s with a lecture called “On Torture.” There, she argued that human rights law and discourse problematically embodied a distinction between what is “sexual or intimate” and what is a political act by the state: “When the abuse is sexual or intimate, especially when it is sexual and inflicted by an intimate, it is gendered, hence not considered a human rights violation.”12 Noting that “all around the world, women are battered, raped, sexually abused as children, prostituted, and increasingly live pornographic lives in contexts saturated more or less with pornography,”13 MacKinnon contended that intimate sexual violence is indeed political (“the state is not all there is to power”) and that “the state actually is typically deeply and actively complicit in the abuses mentioned.”14 Whether or not they saw sexual dominance and subordination as constituting what was often labeled the private, and regardless of

8

Karen Engle

whether they saw the public/private distinction as inherent to human rights law (versus an ideological manifestation of its implementation), structural bias feminists tended to treat the private as the locus of women’s oppression. They considered that women were more oppressed by their families or communities than by their governments, although they acknowledged that governmental (in)action facilitated the perpetuation of that oppression. Thus culture, particularly a conception of Third World culture on which many of the critiques were focused, was seen as responsible for the bulk of women’s problems. It is therefore not surprising that early structural bias feminist analyses of human rights tended to consider issues like female genital mutilation (as they called it), dowry deaths, and even food taboos that kept women undernourished.15 That focus was at least partly responsible for the (re)emergence of critiques from women in and aligned with the global South.

Third World Feminist Critiques Since at least the 1970s, there had been significant disagreements in international fora between women in the global South and the global North (which were then referred to as the Third World and First World, respectively). Much of that discord mirrored that between developed and developing countries more generally. In particular, especially in early United Nations World Conferences on Women, many women from the Third World were more aligned with their governments in their commitments to a new international economic order and resistance to racism, colonialism, and apartheid than they were with women from the global North. Even when feminist activists came together through NGO meetings at those conferences, they often reproduced many of these broader North–­South debates. At the 1985 Nairobi Conference, for example, a number of activists designed a “Peace Tent,” which was meant to be a safe space for voicing political disagreement but also for women to leave their institutional roles behind. Although accounts vary as to the success of the Peace Tent’s overall mission, the space quickly became a forum for heated discussion about such politically charged issues as Palestinian refugee rights, international finance, and U.S. involvement in Nicaragua and Iran.16 The turn of feminists, particularly of structural bias feminists, to human rights law and discourse in the late 1980s and early 1990s both revived and transformed the debates. If, in an earlier era, it could be



Feminist Governance and International Law

9

argued that feminists in the First World simply had different priorities than women in the Third World, international human rights law now provided a platform for feminists in the First World to address the needs and rights of those they often referred to as their “sisters” in the South. The Vienna Conference in 1993 and the United Nations World Conference on Women in Beijing in 1995 (the first ones following the end of the Cold War) offered opportunities for structural bias feminists both to provoke anew and to respond to some Third World feminist critiques. Early Third World feminist critiques challenged the representations of non-­Western women found in both liberal inclusionist and structural bias approaches to women’s human rights. In particular, they called attention to cultural differences they believed were ignored or misunderstood by First World women’s human rights advocates, as well as to the failure of those advocates to see related forms of oppression in their own cultures.17 Third World feminist critiques aimed specifically at structural bias feminism largely came in two forms: liberal and structural. The liberal form asserted that structural bias feminists failed to include Third World women in their analysis. The position tended to assume that Third World women could be assimilated to the structural bias critique without disrupting the analysis; they would simply need to be included. This approach succeeded in many ways. It is responsible for what became a near-­obligatory acknowledgment by women’s human rights advocates in the North that they could not speak on behalf of all women. The structural form of the Third World feminist critique, however, refused any gesture to add Third World women and stir. In effect, it suggested that attending to Third World women would require a radical restructuring not only of human rights law but of feminist approaches to it as well. A number of challenges were raised that were specific to (First World) structural bias feminism. First, it was said to misrepresent Third World women through its near exclusive focus on—­ and essentialization of—­culture. Second, it was argued that structural bias feminism displaced those issues that have the greatest importance to women in the Third World. Third, and relatedly, it was considered complicit in the perpetuation of colonial or neocolonial agendas. To elaborate briefly, Third World feminist critiques often criticized the extent to which structural bias feminist approaches to human rights

10

Karen Engle

denied women’s agency through their representation of women as victims. Leslye Obiora noted, for example, that the critiques “tend to conflate the specificities and meanings of women’s experiences and to perpetuate the dubious portrayal of women as mere epiphenomena or passive objects of male transactions.”18 Of course, that argument had begun to be made about structural bias feminist representations of First World women as well, but Third World feminist critics saw its effect as particularly problematic in the context of women in the global South. As Vasuki Nesiah explained, “a discourse about the experience of oppression often participates in the imperially charged agenda of defining ‘Third World’ women as victims of oppression.”19 If white men had, during colonial times, sought to “sav[e] brown women from brown men,”20 Third World feminist critics often charged white women with attempting to do the same through the human rights movement. In addition, Third World feminist critiques also challenged the structural bias focus on culture. As Obiora later put it, “The truth of the matter is that, despite popular feminist discourses, culture may not be the dispositive influence on the responses of women.”21 For many, the focus on culture, the private sphere, or sexuality detracted from issues and concerns of importance to women in the Third World. Obiora explained: “Campaigns for sexual rights and freedoms [have been] disparaged as the trite obsession of privileged Western feminists by some feminists who preferred to emphasize economic concerns.”22 Even when feminists from the global North attempted to address economic issues, such as the rights of female workers in the Third World, Third World feminists sometimes argued that they missed the source of the problems by analyzing them through a structural bias lens. Anthropologist Aihwa Ong brought together the Third World critiques in a post-­Beijing article entitled “Strategic Sisterhood or Sisters in Solidarity?” There, she questioned Northern feminists’ sense of solidarity with women in the global South, along with their understanding of the effects of global capital. Contending that “local patriarchal norms” are not alone responsible for the mistreatment of female workers, she argued that “strategic sisterhoods will have to confront not only cultural practices in Third World countries, but also metropolitan capitalist enterprises that are driven by profits to seek cheap female labor in the South.”23



Feminist Governance and International Law

11

In some ways, the Third World critiques of Western feminist representations of culture succeeded, resulting in a compromise that I call “culturally sensitive universalism.” The 1993 Vienna Conference played an important role in crafting this compromise, though it emerged there in the context of what was called the “Asian values” debate. On the surface, at least, that debate was largely over the question of whether and how differences between cultures (often conflated with states, in the Asian values version of it) could be effectively addressed by a universal human rights system. The compromise of culturally sensitive universalism can be seen by reading together the first and fifth paragraphs of the Vienna Declaration and Programme of Action (“Vienna Declaration”), the document agreed upon by states at the conference.24 While Paragraph 1 states that “the universal nature of these rights and freedoms is beyond question,” Paragraph 5 notes, by contrast, that “the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind.” Paragraph 5 goes on to state, however, that “it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.” Hence, the paragraph arguably ends with universality, but by endorsing a universality that recognizes difference. The inclusion of both the universal and particular language seemed to satisfy most participants at the conference; its ambiguity signaled a victory for both sides of the Asian values debate. So successful was this compromise language that it was repeated verbatim two years later in the Beijing Declaration and Platform that emerged from the 1995 United Nations Fourth World Conference on Women, this time to respond to debates about culture and gender.25 By then, culturally sensitive universalism was already having an impact on the development of feminist approaches to human rights, even if primarily through perfunctory acknowledgments by many advocates from the global North that they could not necessarily speak for those in the global South. Over time, the spirit of the compromise seemed to stick. That is, the culture issue did not reemerge as an explicit site of contestation, at least not in the same way as it had in the past. The culturally sensitive compromise arguably attended to the Third World feminist critiques aimed at the structural bias prioritization and essentialization of (non-­Western) culture. But it failed to respond to the

12

Karen Engle

most radical potential of the critiques, which was their refusal to separate the cultural from the economic. Taken seriously, such critiques would require attention to the gendered and cultural dimensions of the global distribution of wealth and to the economic dimensions of politics and policies about gender and culture. If questions of economic distribution were largely missed in the early international human rights discussions, they were all but abandoned when feminist intellectual and activist energy shifted to sexual violence against women in conflict. The weak form of the compromise did continue there, however, as structural bias feminists, particularly the strand focused on sexual dominance and subordination, gained the upper hand.

Women’s Human Rights, Sexual Violence in Conflict, and International Criminal Law In February 2013, Navi Pillay, then United Nations High Commissioner for Human Rights, gave a speech to the General Assembly, reflecting on the twenty years that had passed since the Vienna Conference. She discussed three principal achievements of the Vienna Declaration, two of which were “its role in advancing women’s rights” and “its impact on the fight against impunity.”26 With regard to the first, she talked about the success of the “Women’s Rights are Human Rights” slogan at the conference and the institutional gains it spawned concerning violence against women (VAW). As for the second, she noted that “perhaps most significantly, just one month after the establishment of the first ad hoc tribunal since Nuremberg [the International Criminal Tribunal for the Former Yugoslavia (ICTY)], the Declaration nudged the International Law Commission to continue its work on a permanent international criminal court.”27 Although Pillay did not connect those two achievements—­t he recognition of women’s human rights with a new focus on impunity and international criminal responses to combat it—­the two were in fact intertwined. The mainstream recognition at Vienna of women’s rights as human rights took place against the backdrop of a war raging in the former Yugoslavia and reports of sexual violence in that conflict. A 1998 report on sexual violence and armed conflict by the United



Feminist Governance and International Law

13

Nations Division for the Advancement of Women later described the Vienna Conference as a “watershed for women’s human rights,” explaining how the conflict affected the development of women’s human rights: “At that time, reports of sexual violence committed against women in the former Yugoslavia had flooded the media. The accompanying worldwide outrage provided powerful support for NGO arguments that violence against women is a fundamental human rights violation, of concern to the international community at large.”28 The impact of sexual violence in conflict on the acknowledgment of women’s human rights at Vienna would reverberate in subsequent feminist engagement with human rights as well as other areas of international law. Namely, feminists would come to understand these wartime acts not only as human rights violations; they would also see them through the lens of international humanitarian law (even as it blended with human rights law) and would support the development of international criminal law to try individual perpetrators. In what follows, I consider in turn the two achievements recognized by Pillay. I do so with special attention to the role played by sexual violence in conflict in each.

Women’s Human Rights at Vienna and Violence against Women When the initial planning documents for the Vienna Conference were released in 1991, they contained no explicit mention of women’s h ­ uman rights, despite nearly a decade of feminist organizing under that banner. Feminists engaged in an internationally coordinated lobbying effort to address that absence, including through a petition spearheaded by Charlotte Bunch’s Center for Women’s Global Leadership and signed by women from over 120 countries. Once feminists were able to get women’s human rights on the agenda, they experienced little resistance to their inclusion in the Vienna Declaration. As Bunch notes, “the text on women came to the conference almost free of brackets, to the surprise of some men in human rights organizations where the issue was still seen as marginal, if about human rights at all.”29 According to Bunch and collaborator Niamh Reilly, by the time the conference concluded, “gender-­based violence and women’s human rights emerged as one of the most talked-­about

14

Karen Engle

subjects, and women were recognized as a well-­organized human rights constituency.” 30 They point, in particular, to the number of pages of the final text devoted to the equal status of women and to its call for the elimination of violence against women in both public and private.31 The document also named systematic rape and other forms of violence committed against women during armed conflict as human rights violations.32 Particularly given their initial exclusion from the conference agenda, it is remarkable that women’s human rights so easily received mainstream recognition at the conference. That they did so was undoubtedly attributable in part to years of transnational feminist organizing around VAW. But, as suggested earlier, the issue also resonated for many conference participants because of the media’s attention to sexual violence in the former Yugoslavia. Rhonda Copelon later surmised that along with feminist organizing and testimonies of gender violence, “the very concrete fact, brought home by the participation of women from Bosnia and the former Yugoslavia, that women were being raped systematically in Bosnia—­just hours from the site of the conference—­ prevailed over objections to incorporating gender violence as a human rights problem.”33 The emphasis placed on the sexual aspects of the armed conflict in the former Yugoslavia, I would contend, had an impact on the understanding of VAW that prevailed at the conference and, accordingly, on the future trajectory of women’s human rights advocacy. In particular, VAW was discussed and thought about largely in terms of sexual violence, giving greater voice and power to those structural bias feminists for whom male sexual dominance and female sexual subordination were central. When feminists came to Vienna in 1993, VAW was central to their campaign for a variety of reasons. First, many had been organizing transnationally around the issue since at least the mid-­1980s, with some success. Indeed, the United Nations World Conference on Women in Nairobi in 1985 is often discussed as the site where VAW received recognition at both governmental and nongovernmental levels. That said, VAW was not discussed in human rights terms there and, though there was mention of women’s vulnerability to rape and sexual abuse, it was not linked to armed conflict.34 That first reason is therefore tied to a second and third. Vienna offered the opportunity to showcase VAW



Feminist Governance and International Law

15

as a paradigmatic example of the need to rethink human rights in a way that would make states accountable for the treatment of women in both public and private spheres. And it also provided a rubric for thinking about sexual violence in conflict. Prior to Vienna, little of the VAW work had been about conflict-­ related violence, though there was mention of it.35 Yet many of the structural bias feminists who turned to women’s human rights advocacy had long emphasized sex-­related violence against women. As the VAW movement’s title suggests, women were its focus. But a theory of gender underlay that focus. Bunch explained in a 1990 article calling for a transformative approach to human rights: Victims are chosen because of their gender. The message is domination: stay in your place or be afraid. . . . [Such violence] is profoundly political. It results from the structural relationships of power, domination, and privilege between men and women in society. Violence against women is central to maintaining those political relations at home, at work, and in all public spheres.36

Bunch therefore hoped to transform human rights by ensuring its applicability to both public and private spheres. Though she noted that her transformative approach could be applied to any matter, Bunch stated that those who pursued it tended to focus on those issues that are “the most hotly contested” because they require “that barriers be broken down between public and private, state and nongovernmental responsibilities.”37 The issues she listed in that category were “reproductive rights, female sexual slavery, violence against women, and ‘family crimes’ like forced marriage, compulsory heterosexuality, and female mutilation.”38 At another point in the article, she claimed that “the most pervasive violation of females is violence against women in all its manifestations, from wife battery, incest, and rape, to dowry deaths, genital mutilation, and female sexual slavery.”39 Although “sexual violence” was not a term then in circulation, even among feminists, most of Bunch’s examples would fit into that category as it became constructed. Even before Nairobi, some structural bias feminists, including Bunch, had been engaged internationally in combating “female sexual slavery.” That term was apparently coined by Kathleen Barry, who

16

Karen Engle

published a book in 1979 on the topic.40 Bunch worked with Kathleen Barry in the early 1980s to organize an international network against female sexual slavery, hosting a global workshop on sex trafficking in Rotterdam in 1983.41 Although the subject of the conference was what the organizers called “forced prostitution,” it emerged from earlier meetings with broader reach.42 As Barry explained, their definition of female sexual slavery incorporated women “who are the victims of sex tourism, who are the victims of gangs that traffic women from South America to Europe, women who are sexually tortured and enslaved as political prisoners in totalitarian dictatorships and women enslaved in their own homes.” 43 Sex, of course, was seen as the basis of all of these oppressions, and the aim was to connect the “force, coercion and violence in prostitution to the violence in women’s lives around the world, in wife battery, rape, incest, bride burning, excision and pornography.” 44 The centrality of female sexual slavery, and sex trafficking in particular, for many who became involved in the VAW campaign meant that combating sexual subordination would always be an important goal of the campaign. And, as with other forms of violence against women, sexual subordination would be treated as a near-­universal experience. Bunch and Castley appealed to the “cross cultural nature of [the] issue” to note that “the forms of sexual slavery, traffic in women and prostitution may be different from region to region or country to country, but there is no area in the world where this problem does not exist.” 45 The campaign against trafficking did sometimes consider issues of economic resources and poverty, but it did so by arguing that economic deprivation makes women vulnerable to exploitation and, in this context, sexual exploitation. For Barry, at least according to Jennifer Suchland, neither “local patriarchal norms [as opposed to a decontextualized patriarchy] nor the political and economic relationship between nation-­states are important to understanding or defining sex trafficking.” 46 Bunch would later say that “it was the issue of sex trafficking presented as an example of violence against women that highlighted the need to stake out women’s human rights.” 47 Although it might not have been the dominant example offered by many women’s human rights advocates, the theoretical bases that helped construct the category of female sexual slavery made their way into VAW discussions. As



Feminist Governance and International Law

17

Suchland argues, the VAW category is in many ways “the heir to sexual slavery—­and this legacy is certainly important for understanding why such a range of issues (wife battery, trafficking, rape, prostitution, and pornography) became subjects of one composite category ‘violence against women.’” 48 For Suchland, the Vienna Conference solidified the rhetorical connection between sexual violence and sex trafficking. More importantly for my purposes, it solidified the link between VAW and sexual violence, recognizing the former, largely defined by the latter, as the quintessential violation of women’s human rights. Notwithstanding Third World feminist critiques of the structural bias feminist focus on the cultural, private, and sexual aspects of women’s lives, the emphasis given to sexual violence within VAW was less controversial among feminists than one might have imagined. Perhaps it was softened by the adoption of the language of culturally sensitive universalism. But the fact that the increased attention to sexual violence occurred primarily in the context of discussions around armed conflict also made it less conspicuous. No one argued that rape in conflict was culturally defensible and, given the conflict in the former Yugoslavia, it would have been difficult to argue that it should not be a priority. Feminists might originally have presented sexual violence in conflict as symptomatic of the (sexual) violence against women that they urged human rights NGOs and governments to address, but the issue would soon take on a life of its own. As human rights advocacy began to turn much of its attention to the international humanitarian law that governs conduct in war and the international criminal legal means of enforcing it, feminists worked to ensure that the treatment of women in armed conflict was included. In doing so, they both signaled and furthered the mainstreaming of the sexual subordination strand of structural bias feminism.

Sexual Violence in Conflict and Carceral Feminism If the connection between VAW and sexual violence was solidified at Vienna, it manifested itself most strongly in the context of armed conflict, where it also suggested additional international legal tools for addressing sexual violence. The Vienna Declaration explicitly condemned “violations of the human rights of women in situations of armed conflict [as] violations of the fundamental principles of

18

Karen Engle

international human rights and humanitarian law.” 49 It further declared that “all violations of this kind, including in particular murder, systematic rape, sexual slavery, and forced pregnancy, require a particularly effective response.”50 Note that, with the exception of murder, the listed violence is sexual in nature. Note also that it is here that “sexual slavery” made its way into the Declaration. The condemnation of rape was already being expanded to apply to a broad category of sexual violence. When the Declaration mentioned the need for a “particularly effective response” to violations of international humanitarian law, it was already clear that the ICTY, created only one month earlier, would be an important part of that response. The conference report also contained a “Special Declaration on Bosnia and Herzegovina,” which noted that “over 40,000 Bosnian women have been subjected to the gruesome crime of rape.”51 It called for, among other things, the speedy implementation of Security Council Resolution 808 (1993), which established the ICTY.52 The ICTY in fact turned out to be the beginning of a rapid proliferation of international criminal justice institutions, including the International Criminal Tribunal for Rwanda (ICTR) in 1994 (on which Navi Pillay served as a judge) and the International Criminal Court in 1998. A number of women’s human rights advocates soon turned to international criminal law. Indeed, many were at the forefront of the development of the field, particularly of its treatment of rape and sexual violence. In the process, structural bias feminism, especially the strand focused on sexual dominance and subordination, became particularly influential. When women’s human rights advocates turned to international criminal law, they were in many ways aligning with general carceral trends that were already developing in both feminism and human rights advocacy. Both groups, directly and indirectly, had supported the expansion and strengthening of domestic criminal institutions. Feminists in many countries were increasingly turning to the punitive state to protect women’s rights, particularly those rights regarding bodily and sexual integrity. As Aya Gruber has documented in the context of domestic violence, in the 1980s and 1990s, feminists in the United States had begun to turn away from social services and progressive grassroots resistance and toward the use and promotion of



Feminist Governance and International Law

19

criminal prosecutions.53 Meanwhile, feminist critiques of the treatment of rape victims had succeeded in securing harsher penalties for perpetrators, at least for those accused of “stranger” rape. As Dianne Martin notes, “an almost irresistible pressure drove” feminists around the world “toward criminal justice reform and solutions, and to make use of ‘law and order’ arguments to ensure that criminal justice actors will become involved.”54 In the post–­Cold War period, international human rights advocates began to argue for the need to end the culture of impunity for human rights violations, calling upon states to use their criminal law to investigate, prosecute, and punish human rights violators, including nonstate actors.55 These advocates were bolstered early on by the Inter-­ American Court of Human Rights’ decision in its first contentious case, Velásquez-­Rodríguez v. Honduras, which set the stage for both criminalization and state responsibility for human rights violations by nonstate actors. In that case, the Honduran government denied responsibility for the disappearance of a political activist, although it put forward little by way of defense. The Court held that whether the state was directly involved in the disappearance was irrelevant because the state possessed “a legal duty to . . . carry out a serious investigation of violations . . . to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation.”56 Early women’s human rights advocates saw Velásquez-­Rodríguez as signaling a paradigmatic shift. A number of scholarly articles in the late 1980s and early 1990s considered the case as pathbreaking for the women’s human rights movement’s attempts to break down the public/private distinction that had vexed feminists.57 To this day, Velásquez-­ Rodríguez and its progeny are cited by those who argue for state responsibility for violence against women.58 Although it has been little discussed, or perhaps even noticed, the case also signaled the carceral turn in human rights law, as advocates, including feminists, have increasingly called upon states to investigate, prosecute, and punish violators of human rights. The attention to domestic criminal law both by feminists, including transnational feminists, and international human rights advocates was in line with a more general governance trend toward international criminal institutions. Support for an international criminal court, which had waxed and waned since the end of World War II, had been

20

Karen Engle

on the rise since 1989. By the end of the Vienna Conference—­with the newly established ICTY, and several provisions of the Vienna Declaration condemning impunity or calling for criminal sanctions for individual rights violators59—­the future for international criminal institutions looked brighter than it had in decades. Structural bias feminists emerged from the conference strengthened in their fight against sexual violence in conflict and set to engage with criminal justice systems, particularly international criminal institutions. Indeed, structural bias feminists have consistently played a governance role in international criminal law, beginning with the ICTY, where they were relatively successful in influencing rules of evidence and procedures and the interpretation of statutes, particularly with regard to charges of rape as a war crime and crime against humanity. The early jurisprudence of both the ICTY and the ICTR was largely seen as a victory for feminist advocates for its doctrinal recognition of rape as a war crime, a crime against humanity, and, at least in the ICTR, genocide. And while debates over whether rape could or should be treated as an element of genocide divided structural bias feminists early on, particularly in the context of the former Yugoslavia, the split waned as international criminal law developed.60 Perhaps the most systematic feminist organizing around international criminal law occurred during the drafting of the Rome Statute for the International Criminal Court. There, advocates attempted to make up for some of the flaws in, or lack of specificity about, the treatment of sexual violence that they detected in the earlier tribunals. As Janet Halley has described in significant detail, the sexual subordination strand of structural bias feminism prevailed at Rome, as a feminist coalition succeeded in criminalizing a broad range of acts beyond those explicitly recognized by earlier statutes, including sexual slavery.61 The lack of disagreement among feminists was striking,62 but even more so was the “placid calm with which male international law elites from the West received this [structuralist feminist critique] as the voice of sweet reason about how to condemn wartime rape.” 63 Carceral feminism, as Elizabeth Bernstein has termed it,64 has largely become common sense today. Not only is individual criminal accountability the accepted mechanism for redressing sexual violence, but rape and sexual violence are considered the greatest harms that a woman can experience in times of peace or war. The acceptance of



Feminist Governance and International Law

21

these two positions by mainstream elites can be seen in a variety of fora well beyond the Rome Statute. One site of repeated commitment to the criminalization of rape and sexual violence in conflict is the United Nations Security Council, which has passed numerous resolutions on the issue.65 Another is the Group of Eight (G8) which, under the presidency of the U.K., made sexual violence in conflict one of its main areas of focus in 2013. Indeed, the issue became a celebrity cause as Foreign Secretary William Hague teamed up with Angelina Jolie at the April 11, 2013, G8 summit, at a subsequent meeting of the United Nations Security Council later that year, and then as cohost of an official U.K.-­sponsored Global Summit to End Sexual Violence in Conflict in June 2014.66 Somewhat ironically, structural bias feminists have criticized international criminal law’s treatment of sexual violence in conflict but have tended to focus—­in line with liberal inclusion approaches of an earlier era—­on its inadequate enforcement. Perhaps because they played such an important role in the inception and design of international criminal law on sexual violence, they seldom raise issues about the statutory or evidentiary rules per se, or even about any of their unintended consequences. Instead, criticisms tend to be aimed at the outcomes of specific investigations or trials—­t hat charges were dropped, perpetrators were not convicted of sexual violence, or that sentences for sexual violence were too short. Other critiques focus on overall rates of convictions (and their putative causes), which are lower for sexual violence than for other crimes.67

Conclusion That structural bias feminists succeeded in the many efforts I have mentioned does not mean that their message was received or even eventually pursued in the ways that they might have hoped for in 1993. While doctrinal and procedural developments in international criminal and humanitarian law and institutions signal a victory for those structural bias critics who saw sex as the basis of women’s subordination to men, that sexual focus has had long-­term consequences for the understanding of rape and sexual violence that they may not have anticipated and desired. Criminal law has facilitated those and other effects.

22

Karen Engle

The commonsense approach to sexual violence in conflict brought about through the efforts of structural bias feminists oversimplifies both sexual violence and conflict in ways that display and reinforce an assumption that victims are forever destroyed, in part due to the shame and stigmatization that they see as accompanying sexual violence in conflict. As I have contended elsewhere, both the ICTY and ICTR have not only reinforced that assumption of individual and communal shame, they have attributed the shame to culture. In doing so, they have arguably suggested that certain ethnic groups are responsible for their own genocide or attempted genocide, by presuming that communities are torn apart as they shame and are shamed by women and girls who have been raped.68 In other words, the focus on sexual violence in conflict has in the end arguably reinforced—­rather than undermined—­the problematic assertions about culture from an earlier era. In a development that is unlikely to have been intended by many structural bias feminists, sexual violence in conflict is rarely portrayed in terms of male domination and female subordination today but rather is represented in gender-­neutral terms. It is seen as a weapon of war that frightens and affects not only women and girls but also men and boys. With a move from the gendered to the sexual aspects of the violence, and loss of connection between the two, comes a hyper-­attention to sex, which helps to explain but should also give pause about its mainstream appeal. Seen through this lens, much of the work against sexual violence in conflict aids in the production or at least reinforcement of particular types of “proper” sexuality (heterosexual, of a certain age, monogamous, within the same ethnic group, and so on).69 Importantly, feminists were not simply co-­opted.70 The successful structural bias feminists had already elevated the harm of sexual violence as the principal harm to women in general and especially in war. When they were debating other feminists, sexual violence was gender violence (and vice versa). When they went out into the world, their language of sexual violence resonated with political and institutional actors across political, national, cultural, and religious lines. As women’s human rights advocates have relied on international and domestic criminal law, they have also participated in a broader carceral turn that I have disparaged elsewhere.71 In short, I contend that as human rights advocates have increasingly relied on criminal prosecutions,



Feminist Governance and International Law

23

they have reinforced an individualized and decontextualized understanding of the harms they aim to address, even while relying on the state and on forms of criminalization of which the human rights movement has long been critical. The genealogy that I have traced here reflects critical moments when certain positions solidified and even ceased to be seen as positions. It thereby also points to ways in which things might have turned out differently. Importantly, I do not mean to suggest that the human rights movement had it right before it took the carceral turn. Indeed, many aspects of that turn were in response to legitimate feminist concerns about human rights: its ideology was attached to a public/private distinction; it was unable to see ways in which state inaction was indeed state action; its paradigmatic subject was male; it had a weak understanding of civil society and of broader forms of governance; it had little means of enforcement beyond naming and shaming; it failed to theorize gender or sexuality. But structural bias feminist responses to these issues were also contested early on, particularly by Third World feminist critics who called attention to the unequal global distribution of power and resources that was arguably exacerbated by the carceral turn and the larger post–­ Cold War structural changes of which it was a part. Third World feminist critics also challenged many of the problematic assumptions about gender, culture, and sexuality that structural bias feminists brought to the table. In revisiting feminist engagement with international law, I hope to have shown that VAW and sexual violence in conflict were not the obvious focus for transnational feminists and that criminal law did not need to become the principal way to deal with those issues once they became central. By challenging the commonsense narratives that have developed, my ultimate aim is to create some space for imagining new (and some old) forms of international legal activism, advocacy, and even governance.

Notes This chapter has benefited from the feedback of audiences at Fudan University in Shanghai, Harvard Law School, and the University of Wisconsin–­Madison. I am grateful to Cynthia Bowman, Janet Halley, Frédéric Mégret, Helen Kinsella, and Rachel Rebouché for comments on earlier versions. Thanks also to Collin Pelletier Poirot, Helen Kerwin, Kyle Shen, and Simone Gubler for their research assistance.

24

Karen Engle

1. See Arvonne S. Fraser, “Becoming Human: The Origins and Development of Women’s Human Rights,” Human Rights Quarterly 21, no. 4 (1999): 857; Dianne Otto, “Disconcerting ‘Masculinities’: Reinventing the Gendered Subject(s) of International Human Rights Law,” in International Law: Modern Feminist Approaches, ed. Doris Buss and Ambreena Manji (Portland, Ore.: Hart Publishing, 2005), 105–­31, at 112–­13. 2. For an overview of the historical involvement of women in international development programs, as well as the three conceptual paradigms that emerged over time—­WID (Women in Development), WAD (Women and Development), and GAD (Gender and Development)—­see Eva M. Rathgeber, “WID, WAD, GAD: Trends in Research and Practice,” Journal of Developing Areas 24, no. 4 (1990): 489–­502. 3. It would include both the work of those I identified as doctrinalists and institutionalists in 1992. See Karen Engle, “International Human Rights and Feminism: When Discourses Meet,” Michigan Journal of International Law 13, no. 3 (1991): 517–­611. 4. For the most systematic example of the structural bias critique of international law in general, not just of human rights, see Hilary Charlesworth, Christine Chinkin, and Shelly Wright, “Feminist Approaches to International Law,” American Journal of International Law 85, no. 4 (1991): 613–­45. It was the first feminist piece (and still one of only a few) published in the American Journal of International Law. 5. Charlotte Bunch, “Women’s Rights as Human Rights: Toward a Re-­Vision of Human Rights,” Human Rights Quarterly 12, no. 4 (1990): 486–­98, at 494. 6. Dorothy Q. Thomas, “Conclusion,” in Women’s Rights, Human Rights: International Feminist Approaches, ed. Julie Peters and Andrea Wolper (New York: Routledge, 1995), 356–­60, at 358. 7. See, e.g., Karen Knop, “Re/Statements: Feminism and State Sovereignty in International Law,” Transnational Law and Contemporary Problems 3, no. 2 (1993): 293–­4 4. 8. See, e.g., Barbara Stark, “The ‘Other’ Half of the International Bill of Rights as a Postmodern Feminist Text,” in Reconceiving Reality: Women’s Perspectives on International Law, ed. D. G. Dallmeyer (Washington, D.C.: American Society of International Law, 1993), 19–­60. 9. This general approach to the public/private distinction was probably first articulated in the international context in 1986 by Noreen Burrows. See Noreen Burrows, “International Law and Human Rights: The Case of Women’s Rights,” in Human Rights: From Rhetoric to Reality, ed. Tom Campbell, David Goldberg, Sheila McLean, and Tom Mullen (Oxford: Basil Blackwell, 1986), 80–­98. 10. See, e.g., Riane Eisler, “Human Rights: Toward an Integrated Theory of Action,” Human Rights Quarterly 9, no. 3 (1987): 287–­308, particularly 296; Bunch, “Women’s Rights as Human Rights,” 491. 11. For a detailed analysis of public/private discussions in the early 1990s, including the oscillation between these two positions by many, see Karen Engle, “After the Collapse of the Public/Private Distinction: Strategizing Women’s Rights,” in Dallmeyer, Reconceiving Reality, 143–­56. See also Donna Sullivan, “The Public/Private Distinction in International Human Rights Law,” in Peters and Wolper, Women’s Rights, Human Rights, 126–­34.



Feminist Governance and International Law

25

12. Catharine MacKinnon, Are Women Human? (Cambridge, Mass.: Belknap Press of Harvard University Press, 2006), 21 (chapter “On Torture,” from a lecture she delivered in 1990). She noted that intimate violence against men would also not be seen as a human rights violation. Ibid. For a critique of MacKinnon’s assimilation of the gendered understanding of male-­on-­male sexual violence to that of male-­ on-­female sexual violence, see Janet Halley, “Sexuality Harassment,” in Left Legalism/Left Critique, ed. Janet Halley and Wendy Brown (Durham, N.C.: Duke University Press, 2002), 80–­104. 13. MacKinnon, Are Women Human?, 21. 14. Ibid., 23. 15. For but a few examples, see Eisler, “Human Rights,” 294–­96; Bunch, “Women’s Rights as Human Rights,” 489; Nahid Toubia, “Female Genital Mutilation,” in Peters and Wolper, Women’s Rights, Human Rights, 224–­38; C. M. Cerna and J. C. Wallace, “Women and Culture,” in Women and International Human Rights Law, vol. 1, ed. Kelly D. Askin and Dorean M. Koenig (New York: Transnational Publishers, 1998), 623–­51. 16. See, e.g., Genevieve Vaughan, “Letter on Early Peace Tent Planning,” January 14, 1985, University of Texas at Austin School of Law, https://law.utexas.edu/fa​ ­renthold/document/letter-on-early-peace-tent-planning/; Mary Battiata, “Under the Tree with Betty: Litanies of Outrage and Optimism: Feminist Encounters at the Nairobi Women’s Conference,” Washington Post, July 13, 1985; Frances T. Farenthold, “The Peace Tent: Its Origin, Its Impact, Its Future,” October 10, 1985, University of Texas at Austin School of Law, https://law.utexas.edu/farenthold/document/the​ -peace-tent-its-origin-its-impact-its-future/; Elaine Sciolino, “Political Wars in the ‘Peace Tent’ in Kenya,” New York Times, July 13, 1985, 44. For the official mission statement of the Peace Tent, see “Peace Tent Statement,” 1985, University of Texas at Austin School of Law, https://law.utexas.edu/farenthold/document/peace-tent-state​ ment/ (accessed August 8, 2018). 17. For an elaboration of this literature, as well as a description of what I mean by Third World feminism (as distinct from feminism in the Third World), see Karen Engle, “International Human Rights and Feminisms: When Discourses Keep Meeting,” in Buss and Manji, International Law, 47–­67. 18. Paula C. Johnson and L. Amede Obiora, “How Does the Universal Declaration of Human Rights Protect African Women?,” Syracuse Journal of International Law and Commerce 26, no. 3 (1999): 195–­215, at 207. See also Ratna Kapur, “The Tragedy of Victimization Rhetoric: Resurrecting the ‘Native’ Subject in International/Post-­Colonial Feminist Legal Politics,” Harvard Human Rights Journal 15, no. 1 (2002): 1–­38. 19. Vasuki Nesiah, “Toward a Feminist Internationality: A Critique of U.S. Feminist Legal Scholarship,” Harvard Women’s Law Journal 16 (1993): 189–­211, at 197. 20. Gayatri Chakravorty Spivak, “Can the Subaltern Speak?,” in Marxism and the Interpretation of Culture, ed. Cary Nelson and Lawrence Grossberg (Urbana: University of Illinois Press, 1988), 271–­314, at 296. 21. L. Amede Obiora, “Feminism, Globalization, and Culture: After Beijing,” ­Indiana Journal of Global Legal Studies 4, no. 2 (1997): 355–­406, at 385. See also 370–­71.

26

Karen Engle

22. Ibid., 363. 23. Aihwa Ong, “Strategic Sisterhood or Sisters in Solidarity? Questions of Communitarianism and Citizenship in Asia,” Indiana Journal of Global Legal Studies 4, no. 1 (1996): 107–­35, at 126. 24. United Nations World Conference on Human Rights, Vienna Declaration and Programme of Action, A/CONF.157/23, July 12, 1993, paras. 1, 5. 25. United Nations World Conference on Women, Beijing Declaration and Platform for Action, A/CONF.177/RES/1, September 15, 1995, Annex II, Ch II, para 9. 26. Navi Pillay, “Opening Statement by Ms. Navi Pillay United Nations High Commissioner for Human Rights at the 22nd Session of the Human Rights Council,” Disp­ lay​ February 25, 2013, https://newsarchive.ohchr.org/EN/NewsEvents/Pages/­ News.aspx?NewsID=13031&LangID=E. The third achievement she listed was “its swiftly realized recommendation to create . . . the Office of the High Commissioner for Human Rights.” Ibid. 27. Ibid. 28. United Nations Division for the Advancement of Women, Sexual Violence and Armed Conflict: United Nations Response, 1998, 13–­14, http://www.un.org/women​ watch/daw/public/w2apr98.htm (accessed August 9, 2018). 29. Charlotte Bunch, “How Women’s Rights Became Recognized as Human Rights,” in The Unfinished Revolution: Voices from the Global Fight for Women’s Rights, ed. Minky Worden (Bristol, U.K.: Policy Press, 2012), 29–­40, at 34. 30. Charlotte Bunch and Niamh Reilly, Demanding Accountability: The Global Campaign and Vienna Tribunal for Women’s Human Rights (New York: United Nations Development Fund for Women, 1994), 2. 31. Ibid. See also 104–­6. 32. United Nations World Conference on Human Rights, Vienna Declaration and Programme of Action, para. 38. 33. Rhonda Copelon, “International Human Rights Dimensions of Intimate Violence: Another Strand in the Dialectic of Feminist Lawmaking,” American University Journal of Gender, Social Policy and the Law 11, no. 2 (2003): 865–­76, at 867. 34. For examination of these differences in the treatment of VAW at the Nairobi and Vienna conferences, see United Nations Division for the Advancement of Women, Sexual Violence and Armed Conflict, 8, 13. For discussion of the centrality of Nairobi to the emergence of violence against women as a theme, see Alice M. Miller, “Sexuality, Violence against Women, and Human Rights: Women Make Demands and Ladies Get Protection,” Health and Human Rights 7, no. 2 (2004): 16–­47; Charlotte Patton, “Women and Power: The Nairobi Conference, 1985,” in Women, Politics, and the United Nations, ed. Anne Winslow (Westport, Conn.: Greenwood Press, 1995), 61–­76; Hilkka Pietilä and Jeanne Vickers, Making Women Matter: The Role of the United Nations, 3rd ed. (New York: Zed Books, 1996). 35. See, e.g., Bunch, “Women’s Rights as Human Rights,” 497; Dorothy Q. Thomas and Michele E. Beasley, “Domestic Violence as a Human Rights Issue,” Human Rights Quarterly 15, no. 1 (1993): 36–­62, at 39–­40. 36. Bunch, “Women’s Rights as Human Rights,” 490–­91. 37. Ibid., 497. 38. Ibid.



Feminist Governance and International Law

27

39. Ibid., 489. 40. Kathleen Barry, Female Sexual Slavery (New York: New York University Press, 1979). See also Jane Scoular, The Subject of Prostitution: Sex Work, Law and Social Theory (New York: Routledge, 2015), 58 (noting that Barry coined the term “female sexual slavery”). 41. Kathleen Barry, Charlotte Bunch, and Shirley Castley, eds., International Feminism: Networking against Female Sexual Slavery. Report on Global Feminist Workshop against Traffic in Women, Rotterdam, the Netherlands, April 6–­15, 1983 (New York: International Women’s Tribune Centre, 1983). 42. For an extended and very helpful genealogy of the shift in Barry’s position on “unforced prostitution” (pointing to Barry publicly changing her mind in 1995 to say no such category exists) and the legacy of debates over that issue in the drafting of the Rome Statute, see Janet Halley, “Rape at Rome: Feminist Interventions in the Criminalization of Sex-­Related Violence in Positive International Criminal Law,” Michigan Journal of International Law 30, no. 1 (2008): 1–­124, at 91–­92. The seeds of that shift could be seen in Barry’s refusal to share the stage at Rotterdam with Margo St. James, noted advocate for the decriminalization of prostitution. For discussion of the event, see Gail Pheterson, “Not Repeating History,” in A Vindication of the Rights of Whores, ed. Gail Pheterson (Seattle: Seal Press, 1989), 3–­30, at 17–­21. 43. Kathleen Barry, “The Opening Paper: International Politics of Female Sexual Slavery,” in Barry et al., International Feminism, 21–­31, at 22. Bunch and Castley quote and follow Barry’s definition of female sexual slavery from her earlier work, as that which “is present in all situations where women or girls cannot change the immediate conditions of their existence, where, regardless of how they got into those conditions they cannot get out, and where they are subject to sexual violence and exploitation.” Ibid., 146 (quoting Barry, Female Sexual Slavery). 44. Ibid., 21. See also Charlotte Bunch, “Network Strategies and Organizing against Female Sexual Slavery,” in Barry et al., International Feminism, 49–­62, at 49 (offering a similar list). 45. Charlotte Bunch and Shirley Castley, “Introduction,” in Barry et al., International Feminism, 8–­14, at 9. 46. Jennifer Suchland, Economies of Violence: Transnational Feminism, Postsocialism, and the Politics of Sex Trafficking (Durham, N.C.: Duke University Press, 2015), 31. 47. Ibid., 48 (paraphrasing from an interview with Bunch). 48. Ibid. 49. United Nations World Conference on Human Rights, Vienna Declaration and Programme of Action, para. 38. 50. Ibid. 51. United Nations Secretary-­General, Report of the World Conference on Human Rights: Report of the Secretary-­General, part I, A/CONF.157/24, October 13, 1993, 47. 52. Ibid., 49. 53. Aya Gruber, “The Feminist War on Crime,” Iowa Law Review 92, no. 3 (2007): 741–­833, at 749–­51. 54. Dianne L. Martin, “Retribution Revisited: A Reconsideration of Feminist Criminal Law Reform Strategies,” Osgoode Hall Law Journal 36, no. 1 (1998): 151–­ 88, at 168.

28

Karen Engle

55. For a detailed discussion of this broader move, see Karen Engle, “Anti-­ Impunity and the Turn to Criminal Law in Human Rights,” Cornell Law Review 100, no. 5 (2015): 1069–­127. 56. Velásquez-­Rodríguez v. Honduras, Judgment of July 29, 1988, Inter-­American Court of Human Rights, series C no. 4, para. 174. 57. See, e.g., Andrew Byrnes, “Women, Feminism, and International Human Rights Law—­Methodological Myopia, Fundamental Flaws or Meaningful Marginalisation? Some Current Issues,” Australian Year Book of International Law 12 (1988–­ 89): 205–­40, at 229; Margareth Etienne, “Addressing Gender-­Based Violence in an International Context,” Harvard Women’s Law Journal 18 (1995): 139–­70, at 157n97; Elizabeth K. Spahn, “Waiting for Credentials: Feminist Theories of Enforcement of International Human Rights,” American University Law Review 44, no. 4 (1995): 1053–­84, at 1064n34. 58. See, e.g., United Nations General Assembly Human Rights Council, Report of the Special Rapporteur on Violence against Women, Its Causes and Consequences, Rashida Manjoo, A/HRC/23/49, 2013, para. 15, http://undocs.org/A/HRC/23/49 (accessed August 8, 2018). 59. United Nations World Conference on Human Rights, Vienna Declaration and Programme of Action, paras. 23, 60, 92. 60. Some feminists distinguished the rapes from “everyday rape,” arguing that the rapes were a tool for the systematic extermination of Bosnian Muslims. They were not simply rapes; they were a means by which genocide was being committed. Catharine MacKinnon, for example, seemed to turn from her long-­held approach to rape that made difficult even a distinction between everyday heterosexual sex and rape to one that saw the rape of Bosnian Muslim women as special. At one point, she argued, “these rapes are to everyday rape what the Holocaust was to everyday anti-­ Semitism.” Catharine MacKinnon, “Rape, Genocide, and Women’s Human Rights,” in Mass Rape: The War against Women in Bosnia-­Herzegovina, ed. Alexandra Stiglmayer (Lincoln: University of Nebraska Press, 1994), 183–­96, at 186–­87. Others questioned the focus on genocide, pointing out that, unfortunately, the rape of women in wartime, even in such large numbers, was nothing new. Rhonda Copelon, for example, argued that “to emphasize as unparalleled [which many had done] the horror of genocidal rape is factually dubious and risks rendering rape invisible once again.” Rhonda Copelon, “Surfacing Gender: Reconceptualizing Crimes against Women in Time of War,” in Stiglmayer, Mass Rape, 197–­218, at 198. 61. Halley, “Rape at Rome,” 101–­20. 62. Ibid., 2–­3. “The consensus that emerged as the feminists’ joint representation of their worldview, argument repertoire, and reform agenda was not, as one might expect, a median liberal feminist view that split the difference between conservative and leftist feminist ideologies. Instead, the manifest consensus view was an updated radical feminism, strongly committed to a structuralist understanding of male domination and female subordination. There was some tension on a few issues between structuralist and liberal-­individualist feminists . . . but it was muted by the coalitional style adopted by feminists and compromised usually in the direction of structuralist rule choices.” 63. Ibid., 6.



Feminist Governance and International Law

29

64. Elizabeth Bernstein, “The Sexual Politics of the ‘New Abolitionism,’” Differences: Journal of Feminist Cultural Studies 18, no. 3 (2007): 128–­51. See also Bernstein, “Militarized Humanitarianism Meets Carceral Feminism: The Politics of Sex, Rights, and Freedom in Contemporary Antitrafficking Campaigns,” Signs 36, no. 1 (2010): 45–­71; Bernstein, “Carceral Politics as Gender Justice? The ‘Traffic in Women’ and Neoliberal Circuits of Crime, Sex, and Rights,” Theory and Society 41, no. 3 (2012): 233–­59. 65. See, e.g., United Nations Security Council 5,916th Meeting, Resolution 1820, S/RES/1820 (2008), para. 4; United Nations Security Council 6,195th Meeting, Resolution 1888, S/RES/1888 (2009), para. 7; United Nations Security Council 6,453rd Meeting, Resolution 1960, S/RES/1960 (2010), Preamble, para. 11; United Nations Security Council 6,984th Meeting, Resolution 2106, S/RES/2106 (2013), para. 2; United Nations Security Council 7,533rd Meeting, Resolution 2242, S/RES/2242 (2015), para. 14; United Nations Security Council 7,643rd Meeting, Resolution 2272, S/RES/2272 (2016), paras. 7–­11; United Nations Security Council 7,847th Meeting, Resolution 2331, S/RES/2331 (2016), para. 2(b). 66. The G8 meeting led to the adoption of a declaration by the represented ministers. See U.K. Foreign and Commonwealth Office, “Declaration on Preventing Sexual Violence in Conflict,” April 11, 2013, https://www.gov.uk/government/uploads​ /system/uploads/attachment_data/file/185008/G8_PSVI_Declaration_-_FINAL​ .pdf (accessed August 8, 2018). 67. Some of the causes proffered have been scarce resources; inadequate training and investigations; faulty drafting of indictments; inconsistencies in prosecutorial strategy and charging practices with respect to crimes involving rape and sexual violence; and a failure to appeal acquittals in a timely manner. 68. Karen Engle, “Feminism and Its (Dis)contents: Criminalizing Wartime Rape in Bosnia and Herzegovina,” American Journal of International Law 99, no. 4 (2005): 778–­816; Karen Engle and Annelies Lottman, “The Force of Shame,” in Rethinking Rape Law: International and Comparative Perspectives, ed. Clare McGlynn and Vanessa E. Munro (New York: Routledge, 2010), 76–­91. 69. One of the few written expressions of this concern can be found in the discussion of an international gathering on gender and transitional justice held in the mid-­2000s. Reflecting on some of the debates that emerged at the event, Vasuki Nesiah notes: “There were questions about whether the focus on sexual violence feeds into a regressive sex panic that is then used to regulate and further criminalize women’s sexuality—­with particular consequences for women who were involved in sex work in conflict contexts. Did the preoccupation with sexual violence to the exclusion of other issues accompany, and even engender, a preoccupation with ‘legitimate’ and ‘illegitimate’ sex, policing the borders of the ‘decent’ and the ‘deviant,’ only to then reinscribe heteronormative models and approaches?” See Vasuki Nesiah, “Discussion Lines on Gender and Transitional Justice: An Introductory Essay Reflecting on the ICTJ Bellagio Workshop on Gender and Transitional Justice,” Columbia Journal of Gender and the Law 15, no. 3 (2006): 799–­812, at 806. 70. This is one of the few places I disagree with Dianne Otto, who argues (largely against Janet Halley) “that the institutional reception and management of feminist ideas works to divest them of their emancipatory content, and therefore prefer[s] to

30

Karen Engle

depict the result as ‘cooption’ rather than ‘Governance Feminism,’ which implies the result is intentional.” See Dianne Otto, “The Exile of Inclusion: Reflections on Gender Issues in International Law over the Last Decade,” Melbourne Journal of Inter­ national Law 10, no. 1 (2009): 11–­26, at 13. I disagree in part because I do not believe that intentionality is required in Governance Feminism. But I also think that Halley and Otto disagree less than Otto suggests, because they are discussing the impact of two very different forms of feminism (with Halley focused on the successes of structural bias feminism and its role in international criminal law and Otto largely considering those involved in the women’s peace movement in relationship to the women’s peace and security agenda). 71. See Engle, “Anti-­Impunity and the Turn to Criminal Law in Human Rights”; Karen Engle, Zinaida Miller, and D. M. Davis, “Introduction,” in Anti-­Impunity and the Human Rights Agenda, ed. Karen Engle, Zinaida Miller, and D. M. Davis (Cambridge: Cambridge University Press, 2016).

CHAPTER 2

The Politics of Sex, Rights, and Freedom in Contemporary Anti-­trafficking Campaigns ELIZABETH BERNSTEIN

During a blustery New York City winter in the final weeks of 2008, two very different cinematic events focused on the politics of gender, sexuality, and human rights stood out for their symmetry. The first event, a benefit screening of Call + Response, a just-­released “rockumentary” about human trafficking made by the Christian rock-­musician-­cum-­ filmmaker Justin Dillon, showed at a hip downtown cinema to a packed and enthusiastic mixed-­gender audience of young, predominantly white and Korean evangelical Christians.1 The second event, a public screening of the film Very Young Girls,2 a sober documentary about feminist activist Rachel Lloyd and her Harlem-­based nonprofit organization for teenage girls in street prostitution, was populated primarily by secular, middle-­aged professional women with a long-­standing commitment to the abolition of the sex trade. Despite the obvious demographic contrasts between the participants and the different constellations of secular and religious values that they harbored, more striking still was the common political foundation that the two groups had come to share. Over the past two decades, mounting public and political attention has been directed toward the “traffic in women” as a dangerous manifestation of global gender inequalities. Media accounts have rehearsed stories of the abduction, transport, and forced sexual labor of women and girls whose poverty and desperation render them amenable to easy victimization in First and Third World cities. Meanwhile, a remarkably diverse group of social activists and policymakers—­a coalition 31

32

Elizabeth Bernstein

composed of abolitionist feminists, evangelical Christians, and both conservative and liberal government officials—­have put forth an array of new legislation at the local, national, and transnational levels.3 Despite renowned disagreements around the politics of sex and gender, these groups have come together to advocate for harsher criminal and economic penalties against traffickers, prostitutes’ customers, and nations deemed to be taking insufficient steps to stem the flow of trafficked women.4 The key constituencies in the U.S. coalition of anti-­trafficking activists routinely insist that the commitments that unite them are both bipartisan and apolitical—­a claim that is on one level difficult to dispute, since, as religious studies scholar Yvonne Zimmerman has noted, no one could plausibly claim to be “for” sex trafficking.5 In a different ideological register, the political scientist Allen D. Hertzke has celebrated the humanitarian agenda that has linked left and right, and secular and Christian, around this issue, going so far as to hail the wide-­sweeping anti-­trafficking coalition as “one of the most significant human rights movements of our time.” 6 Despite the eager embrace of the anti-­trafficking movement by activists occupying a wide spectrum of political positions—­one that extends from secular feminist groups like the Coalition against Trafficking in Women and Equality Now to such well-­established Christian-­right organizations as Focus on the Family—­in this chapter I argue that what has served to unite this coalition of so-called strange bedfellows is not simply a humanitarian concern with individuals trapped in “modern-­day slavery,” as commentators such as Hertzke have maintained, nor activists’ underlying commitment to “traditional” ideals of gender and sexuality, as various left-­leaning and critical feminist commentators have offered.7 Instead, I seek to demonstrate the extent to which evangelical and feminist anti-­trafficking activism in the United States has been fueled by a shared commitment to carceral paradigms of social, and in particular gender, justice (what I here develop as “carceral feminism”) and to militarized humanitarianism as the preeminent mode of engagement by the state. I draw upon my ongoing ethnographic and policy research with feminist and evangelical anti-­trafficking movement leaders in the United States to argue that the alliance that has been so efficacious in framing contemporary anti-­trafficking politics is the product of two historically unique and intersecting trends: a rightward shift on



The Politics of Sex, Rights, and Freedom

33

the part of many mainstream feminists and other secular liberals away from a redistributive model of justice and toward a politics of incarceration, coincident with a leftward sweep on the part of many younger evangelicals away from the isolationist issues of abortion and gay marriage and toward a globally oriented social justice theology.8

A Genealogy of Sex Trafficking I arrive late and breathless to the Call + Response screening, where I am struck by the crowd of several hundred that has spilled out onto the streets—­t he number of people is remarkable considering that this is an evangelical Christian human rights event in the heart of New York City, that it’s 10 p.m. on a Tuesday night, and that the film has already been showing for several weeks. The young and fashionable attendees are brimming with excitement. I have barely enough time to make my way through the lobby to investigate the row of tables packed with NGO [nongovernmental organization] flyers, posters and other merchandise when I observe a young woman with a tiny gold cross around her neck who is explaining her organization’s “market-­based solutions to sexual slavery” to a ring of eager listeners. The film begins with sinister and grainy footage of young girls in Cambodian brothels, footage that the film leaves unattributed but which I recognize from a previous TV special. Following a clip of several school-­aged children negotiating with a white Western client to exchange money for sex, the film cuts abruptly to performance footage of a Christian rock band whose members strum their guitars intently in urgent lament. This hip, fashionable version of Christianity merges so seamlessly with popular culture and with secular humanitarian impulses that the muted evangelical Christian perspective may not be apparent to secular viewers. The next segment of the film features a number of anti-­trafficking “experts,” including the New York Times columnist Nicholas Kristof as well as various movie stars who have recently taken an interest in the issue, like Ashley Judd and Julia Ormond. Even the philosophy professor and public intellectual Cornel West makes an incongruous appearance, discussing the history of race-­based, chattel slavery in the U.S. The film moves back and forth impressionistically between images of black bodies being whipped and close-­ups of the faces of white Christian rock musicians whose eyes tear up when they recount the ravages

34

Elizabeth Bernstein

of sexual slavery that they have heard about from others or in some cases witnessed. These scenes dissolve into footage of scantily clad women in the windows of Dutch and then geographically unspecified brothels until the camera finally settles upon a young Asian woman who declares to ominous sounding music and to audible gasps from the audience that she has slept with over 1,000 men. Despite Kristof’s insistence in the film that the exchange of sex for money per se is not what is most salient about trafficking, but rather the presence of force and brutality, here it is mundane prostitution scenarios from points around the globe that serve as the rallying cry for action. (From my field notes) 9

As commentators such as legal scholar Jennifer Chacón have noted, trafficking as defined in current federal law and in international protocols could conceivably encompass sweatshop labor, agricultural work, or even corporate crime, but it has been the far less common instances of sexually trafficked women and girls that have stimulated the most concern by conservative Christians, prominent feminist activists, and the press.10 Members of these groups themselves acknowledge (sometimes with frustration) that a focus on sexual violation, rather than the structural preconditions of exploited labor more generally, has been crucial to transforming what had previously been of concern to only a small group of committed activists into a legal framework with power­ ful material and symbolic effects. As Brian McLaren, a progressive evangelical author and activist, observed to me during an interview, “It’s disturbing that nonprofits can raise money to fight sex trafficking in Cambodia, but it’s much harder to raise awareness about bad trade policies in the U.S. that keep Cambodia poor so that it needs sex trafficking.”11 Various commentators have noted the similarities between the moral panic surrounding sex trafficking as modern-­day slavery in the current period and the white slavery scare in the postbellum years of the nineteenth century.12 Although this earlier wave of concern engaged a similar coalition of “new abolitionist” feminists and evangelical Christians, prior to the Progressive era, the goal of eradicating prostitution had not seemed particularly urgent to either group. By the beginning of the twentieth century, however, as tensions mounted over migration, urbanization, and the social changes being wrought by industrial capitalism, narratives of the traffic in women and girls for sexual slavery



The Politics of Sex, Rights, and Freedom

35

abounded. Though empirical investigations would eventually reveal the white slavery narrative to be largely without factual base (the evidence suggested that large numbers of women were not in fact forced into prostitution, other than by economic conditions), anti–­white slave crusaders were nevertheless successful in spurring the passage of a series of red-­light abatement acts, as well as the federal Mann-­Elkins White Slavery Act, which brought the nation’s first era of wide-­scale, commercialized prostitution to a close.13 During the past decades, the term “trafficking” has once again been made synonymous with not only forced but also voluntary prostitution, while an earlier wave of political struggles for both sex workers’ and migrants’ rights has been eclipsed.14 According to observers both laudatory and critical, this displacement has been facilitated by the embrace of human rights discourses by abolitionist feminists, who have effectively neutralized domains of political struggle around questions of labor, migration, and sexual freedom via the tropes of prostitution as gender violence and sexual slavery. From the perspective of abolitionist feminist anti-­trafficking organizations, the shift to the human rights field in the mid-­1990s was crucial to relocating a set of internecine political debates among feminists about the meaning of prostitution and pornography (one that had divided the U.S. feminist movement throughout the 1980s and early 1990s, and in which the nonabolitionist factions were emerging triumphant) to a humanitarian terrain in which the abolitionist constituency was more likely to prevail. A simultaneous and similarly profound shift occurred during the same years within the U.S. evangelical movement. If in the early 1990s most evangelicals had little to do with the human rights field, by 1996 a greater reliance on NGOs by the United Nations (UN), coupled with an awareness of the increasingly global spread of evangelical Christianity, would encourage many newly formed evangelical NGOs to enter the international political fray. Doris Buss and Didi Herman attribute this to the proliferation of UN-­hosted conferences in the 1990s, which facilitated the expansion and further institutionalization of NGO involvement in international law and policymaking.15 In combination with U.S. evangelicals’ growing interest in the issues of international religious freedom and the persecution of Christians, this shift served to propel new sets of religious actors into the trafficking

36

Elizabeth Bernstein

debates and to make religious voices more prominent in the human rights field.16 Evangelical advocacy around human trafficking would receive ­another burst of energy after George W. Bush’s administration expanded upon President Clinton’s “charitable choice” initiative to allow avowedly faith-­based organizations to become eligible for federal funding. Since 2001, the year that President Bush established the Office of Faith-­Based Initiatives, evangelical Christian groups have secured a growing proportion of federal monies for both international and domestic anti-­trafficking work as well as funds for the prevention of HIV/AIDS.17 In a 2007 essay, the sociologist Ron Weitzer notably described feminist and conservative Christian campaigns against sex trafficking in the United States as a moral crusade akin to previous social mobilizations against alcohol consumption and pornography. Weitzer demonstrated that although the campaigns’ empirical claims about the extent of sex trafficking in the United States and its more general relationship to prostitution were flawed, they had nonetheless been successfully institutionalized in a growing number of NGOs and in official state policy.18 Although Weitzer’s argument is an important one and dovetails with various critical feminist perspectives on the issue,19 his account stops short of looking at other sociologically significant links between the two unlikely new-­abolitionist constituencies—­ specifically, that which has united the two groups around a punitive and far from historically inevitable paradigm of state engagement, both domestically and internationally. While the sexual “loyalty oath” insisting that anti-­trafficking groups explicitly denounce prostitution has been amply criticized by various left-­leaning commentators, the carceral loyalty oath that implicitly undergirds such politics has gone largely unchallenged. In what follows, I describe how a sexual politics that is intricately intertwined with broader agendas of criminalization and incarceration has shaped the framing of trafficking for both conservative Christians and mainstream feminists, helping to align the issue with state interests and to catapult it to its recent position of political and cultural prominence. I begin by tracing the contours of what I have termed “carceral feminism,” providing a closer examination of those sectors of the contemporary feminist movement that have embraced the anti-­trafficking cause.



The Politics of Sex, Rights, and Freedom

37

The Sexual Politics of Carceral Feminism I’ve spent about 17 years working on this issue—­most of that time I was on the losing side, as those who supported “sex worker” rights won almost every political battle . . . Those were the depressing years . . . Now the truth about prostitution/sex trafficking is emerging and agencies are responding as never before. I think more pimps and traffickers have been arrested in the last year than in the whole previous decade. (Donna Hughes, anti-­trafficking activist and University of Rhode Island professor of women’s studies)20 Trafficking is like domestic violence. The only thing that prevents recurrence is fear of arrest. (Dorchen Leidholt, feminist activist)21 What do we want? A strong trafficking law! When do we want it? Now! (Call-­and-­response cry at National Organization for Women rally) 22

For grassroots feminists of the early second wave who were interested in criticizing mainstream economic and familial institutions and in advocating on behalf of women’s reproductive rights, it would perhaps have been a strange specter to imagine that a generation hence, pioneers of the early women’s movement such as Laura Lederer (author of the classic volume Take Back the Night and a founder of the anti-­rape movement), Dorchen Leidholdt (a prominent feminist lawyer for victims of domestic violence), and Donna Hughes (Carlson Endowed Chair in Women’s Studies at the University of Rhode Island) would find themselves one bright July morning as the featured speakers at a panel sponsored by the neoconservative Washington, D.C., think tank, the Hudson Institute, titled “The Profits of Pimping: Abolishing Sex Trafficking in the United States.”23 Sharing the stage with them were influential Hudson Institute fellows such as Michael Horowitz (a veteran of the Reagan administration and a prominent architect of the contemporary anti-­trafficking movement); U.S. ambassador Mark Lagon (a former aide to the five-­term far-right Republican senator from North Carolina, Jesse Helms, and the director of the Trafficking in Persons Office at the U.S. Department of State); and Bonni Stachowiak (professor of business administration at the evangelical Christian Vanguard University). As the all-­white array of panelists spoke to the audience about the urgent need to root out inner-­city street pimps and “pimp

38

Elizabeth Bernstein

culture,” to stigmatize the patrons of prostitutes, and to promote healthy families domestically and globally, the audience, composed of representatives from assorted right-­wing organizations including the Heritage Foundation, the American Enterprise Institute, and Feminists for Life, erupted into frequent applause. Of course, for those familiar with the evolution of what Janet Halley has termed “Governance Feminism” (in which feminism “moves off the streets and into the state”),24 as well as the historical precedent of the white slavery panic, the inclusion of prominent feminist activists at the Hudson Institute event might come across as somewhat less of a surprise. In addition to the echoes of white slavery, there are also important historical resonances between the current U.S. anti-­trafficking campaign and the Meese Commission anti-pornography hearings that took place during the 1980s, in which conservative Christians and secular feminists such as Catharine MacKinnon and Andrea Dworkin similarly joined forces for the sake of sexual reform.25 As Judith Walkowitz and Wendy Brown have previously observed, the feminist embrace of state-­anchored sexual moralism is particularly apt to resurface during periods of right-­wing ascendancy like the Reagan and Bush years, when opportunities for more substantive political and economic change are elusive.26 Though the embrace of discourses of criminalization, “democracy-­ building,” naming and shaming, and family values by a crop of avowedly conservative feminists is certainly significant, noteworthy too is the extent to which feminists who identify as secular liberals have found themselves in easy agreement with much of this agenda and have thus been ready and eager partners to conservative-­feminist anti-­ trafficking campaigns. While commentators such as Wendy Chapkis, Kamala Kempadoo, and Miriam Ticktin have previously pointed to a collusion between mainstream feminism and state agendas of border control in contemporary anti-­t rafficking campaigns (where feminist activism unwittingly supports the deportation of migrant sex workers under the guise of securing their protection),27 my ethnographic fieldwork extends this insight, revealing carceral politics and a securitized state apparatus to be anti-­trafficking feminists’ preferred political remedies. Liberal feminists’ embrace of carceral politics, and the articulation of these politics through a particular set of ideals around gender and



The Politics of Sex, Rights, and Freedom

39

sexuality, was made evident at the meetings of the anti-­trafficking caucuses of the National Organization of Women—­New York Chapter (NOW-­N YC) and the American Association of University Women (AAUW) that I attended over a six-­month period between 2007 and 2008. Angela Lee, from the New York Asian Women’s Center, was the final speaker at a 2007 NOW-­N YC rally on behalf of a trafficking bill that would increase the possible penalties against prostitutes’ customers from ninety days to a year in prison.28 An impeccably dressed woman in her mid-forties, she made no mention of the role played by global poverty in the dynamics of trafficking and prostitution but had a great deal to say about the sexual integrity of families. “This is a family issue,” she declared outright, “especially as Chinese New Year approaches and there are so many victims’ families who won’t be able to celebrate.” In this formulation, Lee located sexual menace squarely outside the home, despite a previously hegemonic feminist contention that homes and families are the most dangerous places for women to be.29 Lee went on to link the dangers faced by trafficking victims to New York State’s lack of success in imposing a law that would provide severe enough criminal penalties for traffickers and pimps, declaring with great emotion that “we need to punish the traffickers and to set the victims free!” At a March 2, 2007, discussion focused on “ending demand” for sex trafficking at the Commission on the Status of Women meetings at the UN, the link between sexual and carceral politics was even more power­ fully revealed. At this meeting dedicated to problematizing men’s demand for the services of sex workers, the panelists used the occasion to showcase how the carceral state could be effectively harnessed to achieve amatively coupled, heterosexual nuclear families. The opening speaker from the Coalition Against Trafficking in Women (CATW) explicitly hailed the five white, middle-­class men in the room as exemplars of a new model of enlightened masculinity and urged the audience members to “to bring their husbands, sons, and brothers” to future meetings. The model of prostitution and trafficking that the CATW panelists invoked bore little, if any, connection to structural or economic factors, rendering prostitution wholly attributable to the actions of a small subset of bad men: husbands within the family who might seek the sexual services of women outside of it, or bad men outside the family who might entice women and girls within it to leave.30

40

Elizabeth Bernstein

Although the CATW regards itself as a progressive feminist organization, members displayed surprisingly little hesitation in their appeals to a punitive state apparatus. At a legislative level, the liberal feminist position on trafficking has been most clearly articulated by U.S. Representative Carolyn Maloney, a Democratic congresswoman from New York previously known for her advocacy around issues such as the gendered wage gap and women’s reproductive health. Maloney has taken a leading role in the contemporary feminist campaign against sex trafficking, sponsoring legislation to target the clients of sex workers and to collapse any distinction between forced and voluntary prostitution in federal anti-­ trafficking law. She has also worked closely with feminist groups like the National Organization for Women and Equality Now, as well as with the Hudson Institute’s Horowitz and conservative Christian constituencies such as Evangelicals for Social Action. In a chapter of her 2008 book, tellingly titled “The Pretty Woman Myth” (thus making plain that the only form of trafficking that concerns her is heterosexual prostitution), two things are particularly noteworthy.31 The first aspect of Maloney’s discussion to note is the moral elevation of the heterosexual nuclear family in the pathways toward female sexual slavery she wrenchingly describes. Although Maloney mentions incest suffered by girl children within the family as a common pathway into prostitution, in this analysis incest does not in and of itself amount to the human rights violation of sexual slavery, a term she reserves for extrafamilial forms of violence. A second key element in Maloney’s book is the extent to which carceral politics and gender politics are mutually implied. By way of her conclusion to “The Pretty Woman Myth,” Maloney insists that the best means to fight slavery is through the arrest and incarceration of prostitutes’ johns and pimps, together with more vigilant protection of children. The above examples highlight an important alliance between feminism and the carceral state, one that extends beyond recent feminist partnerships with the religious right wing. In an analysis that traces the co-­emergence of second-­wave feminist attention to sexual violence and neoliberal agendas of incarceration, Kristin Bumiller has similarly demonstrated the ways in which a myopic feminist focus on the criminalization of rape and domestic violence during the 1990s contrasted with grassroots and early second-­wave feminist concerns about



The Politics of Sex, Rights, and Freedom

41

women’s social and economic empowerment.32 Arguing that the neoliberal carceral imperative has had a devastating impact on the ways that feminist engagement with sexual violence has been framed, Bumiller demonstrates that the reciprocal is also true: once feminism became fatally inflected by neoliberal strategies of social control, it could serve as an effective inspiration for broader campaigns for criminalization. Bumiller observes that by the early twenty-­first century, the neoliberal sexual violence agenda of feminism was increasingly being exported as part of U.S. human rights policy, solidifying the carceral imperative within feminism domestically and spreading the paradigm of feminism-­as-­crime-­control across the globe.33 The evidence indeed suggests that U.S. anti-­trafficking campaigns have been far more successful at criminalizing marginalized populations, enforcing border control, and measuring other countries’ compliance with human rights standards based on the curtailment of prostitution than they have been at issuing any concrete benefits to victims. As Bumiller argues, this is not just a question of “unintended consequences” but rather has transpired as a result of feminists directly joining forces with a neoliberal project of social control.34 This is true both within the United States, where pimps can now be given ninety-­ nine-­year prison sentences as sex traffickers and sex workers are increasingly arrested and deported for the sake of their protection,35 as well as elsewhere around the globe, where the U.S. tier ranking of other countries has led to the tightening of borders internationally and to the passage of punitive antiprostitution policies in numerous countries.36 Most recently, with gathering feminist attention to so-­called domestic forms of trafficking (which films like Very Young Girls have sought to ignite), it has become clear that the shift from local forms of sexual violence to the international field back to a concern with policing U.S. inner cities (this time, under the guise of protecting women’s human rights) has provided critical circuitry for the carceral feminist agenda. According to U.S. Attorney Pamela Chen, a full half of federal trafficking cases currently concern underage women in inner-­city street prostitution.37 Enforcement-­wise, this has resulted in an unprecedented police crackdown on people of color who are involved in the street-­ based sexual economy—­including pimps, clients, and sex workers alike.38

42

Elizabeth Bernstein

“Our God of [Criminal] Justice”: Militarizing Humanitarianism in New-­Evangelical Anti-­trafficking Campaigns Citychurch [a pseudonym] is a Christian megachurch in Manhattan that I have attended occasionally since beginning this project, a church that several young evangelicals in the anti-­trafficking movement have recommended to me highly. Tonight I am at an event sponsored by the women’s ministry, a discussion with faith-­based movement leaders that is dedicated to the issue of sex trafficking. Our meeting takes place at the church’s midtown headquarters, where some eighty-­five young women have gathered. The session begins with a brief collective prayer led by a young white woman who addresses her entreaty to “Our God of Justice” as we bow our heads solemnly. She beckons Him to allow His spirit to move tonight’s speakers in sharing what He is doing “to bring about justice in the world.” The panel moderator approaches the podium next: she is an exuberant young woman who describes how she has dedicated her life to helping the broken and the hurting. She explains that her own activism around trafficking was initially inspired by Maria’s story, that of a virgin who left her hometown in Mexico only to find herself in a brothel. Although it remains unclear how she first learned about Maria, and the story itself is short on specifics, her eyes well up as she speaks to us, as do those of many other women who are gathered in the room. The first panelist is a thin, white, bespectacled woman in her midthirties who runs a New York organization for women coming out of sexual slavery. Recently, her group has begun a collaboration with the New York Asian Women’s Center, a Christian–­secular alliance which works to the benefit of both groups: the fact that her own organization’s funding comes from the Church means that they are not beholden to government guidelines in order to identify victims. This allows them to work with people “they know have been trafficked” even if the women in question refuse to admit it. Members of the organization locate victims by stationing themselves in Queens and Manhattan community courts and approaching women who have pled guilty to prostitution charges after their brothels have been raided. She explains that “by them pleading guilty, they’re court mandated to receive services from us which at least gives us some opportunity to gain their trust.” . . .



The Politics of Sex, Rights, and Freedom

43

The last speaker is a young woman from the International Justice Mission, the largest and most established evangelical anti-­trafficking organization in the U.S., with operations in 14 countries. She begins her presentation by declaring her joy at being a part of “this global transformation of the Church.” She applauds the new work that churches are doing to fight injustice, urging those in the audience to reconsider Psalm 10. “Listen to this description of an oppressor,” she offers, before pausing briefly for dramatic effect: “He lies in wait near the villages. From ambush he murders the innocent. Watching in secret for his victims, he lies in wait like a lion in cover. He lies in wait to catch the helpless. He catches the helpless and drags them off in his net.” (From my field notes)39

Among many left-­ leaning secular critics of contemporary anti-­ trafficking campaigns, old stereotypes persist about the underlying cultural politics and broader social interests that have resonated with contemporary evangelical Christians, a group that is frequently assumed to be one and the same with the anti-pornography, anti-­abortion, and anti–­ gay rights activists of generations past. Although avowedly Christian right groups such as Concerned Women for America and the Salvation Army have also been active participants in the contemporary anti-­ trafficking crusade, my research in “justice-­oriented” churches such as Citychurch, at prayer gatherings for trafficking victims, and at evangelical anti-­trafficking conferences and film screenings suggests that such groups do not represent the preponderance of evangelical Christian grassroots activity. Instead, a new group of young, highly educated, and relatively affluent evangelicals who often describe themselves as members of the “justice generation” have pursued some of the most active and passionate campaigning around sexual slavery and human trafficking. In contrast to their Christian right predecessors, the young evangelicals who have pioneered Christian engagement in the contemporary anti-­ trafficking movement not only embrace the languages of women’s rights and social justice but have also taken deliberate steps to distinguish their work from the sexual politics of other conservative Christians. Though many of these evangelicals remain opposed to both gay marriage and abortion, they do not grant these issues the same political priority as their more conservative peers. Instead, young evangelicals

44

Elizabeth Bernstein

have argued that the best way to forge an effective politics is to move away from hot-­button controversies around gender and sexuality and to focus their attention on what they understand to be uncontroversial and consensus-­building issues such as global warming, human trafficking, and HIV/AIDS. Yet the new-­evangelical pursuit of social justice that has spawned the anti-­trafficking movement remains wedded to a particular constellation of sexual and gender politics, one that, while sharing key points of continuity with their Christian Right brethren, is in equally important ways quite distinct. At a basic level, new evangelicals’ embrace of human trafficking as a focus of concern must be situated as a culturally modernizing project rather than a traditionalizing one. Under the guise of moral condemnation and prostitutes’ rescue, women in particular are granted new opportunities to participate in sexually explicit culture, international travel, and the previously forbidden corners of urban space. Moreover, contemporary evangelical anti-­trafficking activists hew closely to a liberal-­feminist vision of egalitarian heterosexual marriage and professional-­sphere equality, one in which heterosexual prostitution, as for many middle-­class secular liberals, represents the antithesis of both these political aims. Despite the genuinely modernizing aspects of new-­evangelical sexual politics, a spate of celebratory declarations in the press about the fatal fracture of the U.S. evangelical movement40 may also be overstated, as there remain several elements that continue to connect the various developing factions. Although new evangelicals do care less about culture-­war battles than they do about humanitarian issues and global social justice, their vision of social justice remains one that equates directly with criminal justice, and, as I shall demonstrate below, to the extent that economic issues are considered as causal factors in human suffering, the solutions that new evangelicals forge are imagined in neoliberal, consumer-­friendly terms. In this way, new evangelicals remain beholden to an underlying carceral politics that serves to link them not just to those sectors of the contemporary feminist movement that have themselves veered rightward in recent decades but also to the entire right-­wing spectrum of criminal justice–­ oriented social and economic conservatives. A stark example of the neoliberal criminal justice agenda that undergirds new-­evangelical humanitarian interventions is represented



The Politics of Sex, Rights, and Freedom

45

by the International Justice Mission (IJM), which has been at the forefront of the media-­ friendly militarized humanitarianism that has characterized the faith-­based response to human trafficking since the late 1990s.41 In the rescue-­and-­restore model of activism that IJM has patented, male employees of the organization go undercover as potential clients to investigate brothels around the globe, partnering with local law enforcement (as well as mainstream press outlets) to rescue underage and allegedly coerced brothel occupants and to deliver them to rehabilitation facilities. Although IJM’s operations have attracted some controversy, the undercover and mass media–­oriented model of activism that IJM propounds has become the emulated standard for evangelical Christian and secular feminist organizations alike.42 The secular feminist organization Equality Now, for example, has similarly enlisted male volunteers to go undercover to find traffickers and to work with local law enforcement to bring them to trial.43 Notably, IJM’s tactics have been hailed by both the Bush administration and by secular humanitarians in the Obama administration such as Samantha Power.44 Through IJM’s rescue missions, men are coaxed into participating in women’s and other humanitarian issues by being granted the role of heroic crime fighters and saviors. Unlike in other Christian men’s groups, however, here it is not headship in the domestic enclave of the nuclear family that draws men in but rather the assumption of a leadership role in and against a problem that is global in scope and that requires transnational actors to combat. But more than a newly transnationalized middle-­class masculinity is at stake here, particularly since the majority of the organization’s grassroots activists—­as in anti-­trafficking campaigns in general—­are middle-­class young women. In contrast to a previous generation of evangelical Christian activist groups that avowedly embraced sexual and gender traditionalism for Western women, IJM’s members make frequent reference to the backward traditionalism of Third World cultures as one of the primary causes of sex trafficking, a framework that helps them to define and reinforce their own perceived freedom and autonomy as Western women. In this regard, they follow what Inderpal Grewal has identified as the contemporary feminist model of human rights activism, produced by subjects who imagine themselves as more ethical and free than their “sisters” in the developing world.45

46

Elizabeth Bernstein

The embrace of the Third World trafficking victim as a modern cause thus offers these young evangelical women a means to engage directly in a sex-­saturated culture without becoming contaminated by it; it provides an opportunity to commune with Third World “bad girls” while remaining First World “good girls.” Whether by directly entering the Third World brothel or by viewing highly sexualized media portrayals, the issue of trafficking permits a sexualized frame to exist without threatening these women’s own moral status or social position. One twenty-­three-­year-­old evangelical anti-­trafficking activist whom I encountered at the Call + Response screening bluntly reflected upon the Christian concern with trafficking in terms of the issue’s “sexiness,” noting that “Nightline does specials on it. . . . It would be hard to do a Nightline special on abortion.” 46 Evangelical anti-­trafficking efforts thus extend activist trends that have also become increasingly prevalent elsewhere, embodying a form of political engagement that is consumer-­and media-­f riendly and saturated in the tropes and imagery of the sexual culture it overtly opposes—­a feminine, consumptive counterpart to the masculine politics of militaristic rescue. An article from the magazine Christianity Today on sex trafficking titled “Red-­Light Rescue” makes this dynamic quite clear.47 The accompanying image depicts a smiling young activist from a Christian human rights group who is ministering to a sex worker in a Thai brothel. Although the magazine’s evangelical readership would be likely to interpret the woman’s happy affect as evidence of Christ’s love,48 young missionaries’ brothel visits are also situated within the contemporary practices of consumer humanitarianism, in which touristic adventures in exotic settings serve to create Westerners’ sense of freedom and good times.49 Though consumer-­friendly politics have become a stock feature of many forms of contemporary social justice activism, they occupy an especially prominent place in evangelical anti-­trafficking campaigns in which new abolitionists are frequently summoned to make purchases that will contribute to faith-­based organizations (as in the ironically titled “Not for Sale Freedom Store” or by purchasing items that women who have purportedly been freed from sexual slavery have crafted).50 For contemporary evangelicals, the purchase of consumer goods in the name of fighting trafficking serves a dual purpose in solidifying the distinction between freedom and slavery: on the one hand, “freedom”



The Politics of Sex, Rights, and Freedom

47

resides in Western consumers’ ability to purchase the trinkets and baubles that “trafficking victims” produce; on the other hand, it pertains to the practice that new evangelicals call “business as mission,” in which former “slaves” are brought into “free” labor by producing commodities for Western consumers. Ultimately, business as mission can be seen as a global-­ capitalist refashioning of the nineteenth-­ century evangelical practice of rescuing women from prostitution by bringing them into domestic labor or teaching them to sew.51 The smiling photograph from Christianity Today, and the idea of business as mission, forge a dramatic contrast with the work of sociologist Elena Shih, who has done ethnographic research with several different evangelical Christian rescue projects in Thailand and China.52 She has found that nearly all of the “victims” who are employed as jewelry makers by the rescue projects are adult women who had previously chosen sex work as their highest-­paying option, but who, after accumulating some savings, elected to engage in evangelical Christian “prayer work” and jewelry making instead.53 After signing on to the jewelry-­making projects, they soon discovered that their lives would henceforth be micromanaged by their missionary employers, that they would no longer be free to visit family and friends in the red-­light districts, and that their pay would be docked for missing daily prayer sessions, for being minutes late to work, or for committing minor behavioral infractions. Many came to question whether their current lives really offered them more freedom than they had before.

Conclusion: Carceral Politics as Gender Justice? The human rights model in its global manifestation is a pseudo-­ criminalized system of surveillance and sanctions. At its most ­extreme . . . human rights policy can be used to justify military intervention.  .  .  . Thus, it becomes imperative to ask in both a local and global context—­how do policies designed to “protect” women serve to reproduce violence? (Kristin Bumiller, In an Abusive State)54 Save us from our saviors. We’re tired of being saved. (Slogan of VAMP)55

Although sexual intersections are crucial to cementing the coalition between feminists and Christians that has given rise to the anti-­trafficking

48

Elizabeth Bernstein

movement, I have sought to show in this chapter that they are not the only points of contact that are vital to understanding how this coalition of “strange bedfellows” was enabled: these intersections must also be situated in terms of a series of broader political and cultural realignments that have occurred during a period in which the consumer and the carceral have increasingly been seen as the preeminent vehicles for social justice. These shared political commitments serve not only to link contemporary feminists and evangelicals to each other but also to join both constituencies to a broad spectrum of secular and religious conservatives. There is a large body of critical feminist literature documenting the ways in which Western feminist forays into the international human rights terrain are inseparable from neocolonial state interests.56 But this analysis points to the ways in which neocolonial humanitarian interventions have also been used as a staging ground for the resolution of internecine Western feminist and evangelical Christian cultural conflicts. As this chapter has shown, two different shifts in feminist and conservative Christian sexual politics have made the contemporary campaign against sex trafficking possible: the feminist shift from a focus on bad men inside the home to bad men outside the home, and the shift of a new generation of evangelical Christians from a focus on sexually improper women (as prior concerns with abortion suggest) to a focus on sexually dangerous men. What has also been revealed here is the way both groups have turned away from direct engagement with the gender politics of the family and toward a focus on gender and sexual violence in the public sphere. It has been through these shifts that both groups have come to foster an alliance with neoliberal consumer politics and a militarized state apparatus that utilizes claims of a particular white, middle-­ class model of Western gender and sexual superiority in achieving its goals. Although the cultural and political dynamics that I have described here rose to prominence during the years of the George W. Bush administration and religious right ascendance, neither the secular-­liberal Obama era nor the right-populist Trump regime ushered in a dramatic change of course. While some secular liberals have celebrated the fact that U.S. anti-­trafficking policy is now less likely to be used as a proxy for religious right and “radical” feminist concerns about sex,57 as I have



The Politics of Sex, Rights, and Freedom

49

sought to demonstrate through my discussion, “liberals” and “conservatives” have tended to agree on the underlying carceral politics that have defined the issue of trafficking from the outset (with debates revolving around the narrow question of whether severe criminal penalties should extend beyond sex trafficking to other forms of trafficking as well). The hesitancy that a number of sex workers’ rights advocates initially voiced when the UN Protocol against Trafficking in Persons was first negotiated as a crime control protocol58 has all but vanished from the realm of acceptable political discourse. What may, however, be most significant to the contemporary political landscape around the issue of human trafficking are the possible transformations linked to an era of economic crisis and the ensuing financial strains that are likely to be placed upon the carceral state. Can feminist and new-­evangelical carceral politics persist amid rising calls, including from elements of the right, for the downsizing of prisons?59 One possibility is that as attention continues to shift to so-­called domestic forms of trafficking, calls for incarceration may eventually give way to more cost-­effective demands for reeducation programs for some offenders and compulsory services for trafficking victims (as feminist and evangelical “treatment” programs for former prostitutes demonstrate). In terms of the international field, it is possible that contemporary anti-­trafficking campaigns may eventually give way to a focus on other consensus-­ building humanitarian issues involving violence against women and children, as we have already seen with feminist and evangelical attention to issues such as fistula and wars in Congo and Sudan.60 But whether or not the trafficking issue remains a unifying focus for contemporary feminist and evangelical social activism, the general political trend toward the reliance on humanitarian NGOs and the causes that they expose seems clear. In the neoliberal context of a devolving state apparatus, practices of governance increasingly rely on a coalition of state and nonstate actors, rather than the state itself. The symbolic and material allegiances that these groups have with the state (via both carceral politics and funding) ensures that only those humanitarian issues that advance a larger set of geopolitical interests (be it border control, waging war, or policing the domestic underclass) are likely to gain traction in the broader public sphere.

50

Elizabeth Bernstein

Notes 1. Justin Dillon, dir., Call + Response (Oakland, Calif.: Fair Trade Pictures, 2008). 2. David Schisgall, Nina Alvarez, and Priya Swaminathan, dirs., Very Young Girls (New York: Girls Educational and Mentoring Services, 2008). 3. The term “abolitionism” was used in the late nineteenth century to describe North American and European feminist efforts to eliminate prostitution. It has been reclaimed by those sectors of the contemporary feminist movement that share the conviction that prostitution constitutes a harm tantamount to slavery that nation-­ states should work to extinguish. 4. See, most recently, the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008 (H.R. 7311); see also the Trafficking Victims Protection Act (TVPA) of 2000 (Pub L. No. 106-­386) and the United Nations Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, Supplementing the Convention against Transnational Organized Crime (2000). 5. Yvonne Zimmermann, “Deliver Us from Evil: Christian Freedom and Sexual Regulation in the Trafficking Victims Protection Act” (PhD diss., University of Denver, 2008). Sex workers’ rights organizations have objected to the prevailing rubric of “sex trafficking,” arguing against the analytic separation of trafficking for prostitution from trafficking for other forms of labor. 6. Allen D. Hertzke, Freeing God’s Children: The Unlikely Alliance for Global Human Rights (Lanham, Md.: Rowman & Littlefield, 2004), 6. 7. See Penelope Saunders, “Traffic Violations: Determining the Meaning of Violence in Sexual Trafficking versus Sex Work,” Journal of Interpersonal Violence 20, no. 3 (2005): 343–­60; Jacqueline Berman, “The Left, the Right, and the Prostitute: The Making of U.S. Antitrafficking in Persons Policy,” Tulane Journal of International and Comparative Law 14, no. 2 (2006): 269–­93; and Ronald Weitzer, “The Social Construction of Sex Trafficking: Ideology and Institutionalization of a Moral Crusade,” Politics & Society 35, no. 3 (2007): 447–­75. 8. My research melds an analysis of policy documents and published writings with a multi-­sited ethnographic approach focused on state-­as well as activist-­ sponsored policy meetings, conferences, and strategy sessions. In addition to ethnographic research, I conducted twenty-­eight in-­depth, face-­to-­face interviews with anti-­trafficking movement leaders. My research is also informed by a decade of prior ethnographic investigation with sex workers, which demonstrated that the rubric of trafficking is inadequate to describe sex workers’ highly diverse experiences under conditions of late capitalism, consistent with a growing body of anthropological and sociological inquiry. See Elizabeth Bernstein, Temporarily Yours: Intimacy, Authenticity, and the Commerce of Sex (Chicago: University of Chicago Press, 2007). See also, e.g., Kamala Kempadoo, ed., Trafficking and Prostitution Reconsidered: New Perspectives on Migration, Sex Work, and Human Rights (Boulder, Colo.: Paradigm, 2005); Laura María Agustín, Sex at the Margins: Migration, Labour Markets and the Rescue Industry (London: Zed, 2007); and Sealing Cheng, On the Move for Love: Migrant Entertainers and the U.S. Military in South Korea (Philadelphia: University of Pennsylvania Press, 2010). 9. From my field notes, New York, January 7, 2009.



The Politics of Sex, Rights, and Freedom

51

10. Jennifer M. Chacón, “Misery and Myopia: Understanding the Failures of U.S. Efforts to Stop Human Trafficking,” Fordham Law Review 74, no. 6 (2006): 2977–­3040. In the TVPA of 2000, “trafficking” is defined as “the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.” In the 2000 UN Protocol against Trafficking in Persons, “trafficking” is understood to include “the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.” 11. Brian McLaren, telephone interview, November 10, 2008. Transcript on file with the author. 12. Saunders, “Traffic Violations”; Gretchen Soderlund, “Running from the Rescuers: New U.S. Crusades against Sex Trafficking and the Rhetoric of Abolition,” NWSA Journal 17, no. 3 (2005): 64–­87; and Agustín, Sex at the Margins. 13. The 1910 Mann Act prohibited the interstate traffic in women for “immoral purposes.” It later became notorious for its use in prosecuting instances of interracial sex; see David J. Langum, Crossing over the Line: Legislating Morality and the Mann Act (Chicago: University of Chicago Press, 1994). 14. Kamala Kempadoo and Jo Doezema, eds., Global Sex Workers: Rights, Resistance, and Redefinition (New York: Routledge, 1998); Agustín, Sex at the Margins; and Wendy Chapkis, “Soft Glove, Punishing Fist: The Trafficking Victims Protection Act of 2000,” in Regulating Sex: the Politics of Intimacy and Identity, ed. Elizabeth Bernstein and Laurie Schaffner (New York: Routledge, 2005), 51–­66. 15. Doris Buss and Didi Herman, Globalizing Family Values: The Christian Right in International Politics (Minneapolis: University of Minnesota Press, 2003). 16. Allen D. Hertzke, Freeing God’s Children: The Unlikely Alliance for Global ­Human Rights (Lanham, Md.: Rowman & Littlefield, 2004). 17. Gwendolyn Mink, “Faith in the Government?,” Social Justice 28, no.1 (2001): 5–­10; Jennifer S. Butler, Born Again: The Christian Right Globalized (London: Pluto, 2006). 18. Weitzer, “Social Construction of Sex Trafficking.” 19. See, e.g., Saunders, “Traffic Violations”; and Berman, “The Left, the Right, and the Prostitute.” 20. Donna Hughes, “The New Abolitionist Movement,” interview in National ­Review Online, January 26, 2006, https://www.nationalreview.com/2006/01/new​ -​abolitionist-movement-interview/. 21. Dorchen Leidholt, feminist activist from the Coalition against the Traffic in Women, speaking at the United Nations Commission on the Status of Women, March 2, 2007. 22. Call-­and-­response cry at National Organization for Women rally for New York State law that would increase criminal penalties against prostitutes’ customers, New York, February 1, 2007. 23. The event took place on July 10, 2008. 24. Janet Halley, Split Decisions: How and Why to Take a Break from Feminism (Princeton, N.J.: Princeton University Press, 2006), 20.

52

Elizabeth Bernstein

25. Lisa Duggan and Nan D. Hunter, Sex Wars: Sexual Dissent and Political Culture (New York: Routledge, 1995); and Carole Vance, “Negotiating Sex and Gender in the Attorney General’s Commission on Pornography,” in The Gender/Sexuality Reader: Culture, History, Political Economy, ed. Roger N. Lancaster and Micaela di Leonardo (New York: Routledge, 1997), 440–­52. 26. Judith Walkowitz, “Male Vice and Female Virtue: Feminism and the Politics of Prostitution in Nineteenth Century Britain,” in Powers of Desire: The Politics of Sexuality, ed. Ann Snitow, Christine Stansell, and Sharon Thompson (New York: Monthly Review Press, 1983), 419–­39; Wendy Brown, States of Injury: Power and Freedom in Late Modernity (Princeton, N.J.: Princeton University Press, 1995). 27. Kempadoo, Trafficking and Prostitution Reconsidered; Chapkis, “Soft Glove, Punishing Fist”; and Miriam Ticktin, “Sexual Violence as the Language of Border Control: Where French Feminist and Anti-­immigrant Rhetoric Meet,” Signs: Journal of Women in Culture and Society 33, no. 4 (2008): 863–­89. 28. The bill passed with broad support from New York feminist organizations on June 6, 2007. 29. This is in addition to ample feminist research that notes that women and girls often enter into prostitution at their families’ behest, so as to better provide for their parents and children. See Heather Montgomery, Modern Babylon? Prostituting Children in Thailand (New York: Berghahn, 2001); Agustín, Sex at the Margins; and Bernstein, Temporarily Yours. 30. In Sex at the Margins, Laura María Agustín has described the anxieties that circulate around trafficking in terms of displaced concerns about women leaving home for sex. 31. Carolyn B. Maloney, “The Pretty Woman Myth,” in Rumors of Our Progress Have Been Greatly Exaggerated: Why Women’s Lives Aren’t Getting Any Easier—­And How We Can Make Real Progress for Ourselves and Our Daughters (New York: Modern Times, 2008). 32. Kristin Bumiller, In an Abusive State: How Neoliberalism Appropriated the Feminist Movement against Sexual Violence (Durham, N.C.: Duke University Press, 2008). 33. See also Inderpal Grewal, Transnational America: Feminism, Diasporas, Neoliberalisms (Durham, N.C.: Duke University Press, 2005). 34. Bumiller, In an Abusive State, 15. 35. See Bernstein, Temporarily Yours; and Bernstein, “The Sexual Politics of the ‘New Abolitionism,’” Differences 18, no. 3 (2007): 128–­51. 36. See Nandita Sharma, “Anti-­Trafficking Rhetoric and the Making of a Global Apartheid,” NWSA Journal 17, no. 3 (2005): 88–­111; Svati P. Shah, “South Asian Border Crossings and Sex Work: Revisiting the Question of Migration in Anti-­ Trafficking Interventions,” Sexuality Research and Social Policy 5, no. 4 (2008): 18–­ 19; and Cheng, On the Move for Love. 37. Pamela Chen, Presentation at the 3rd KAAT Conference: Korean Americans against Trafficking, New York Asian Women’s Center, Flushing, N.Y., August 29, 2007. 38. Bernstein, “The Sexual Politics of the ‘New Abolitionism.’” 39. From my field notes, New York, March 17, 2009.



The Politics of Sex, Rights, and Freedom

53

40. See, e.g., David D. Kirkpatrick, “The Evangelical Crackup,” New York Times, October 28, 2007, https://www.nytimes.com/2007/10/28/magazine/28Evangelicals​ -t.html; Christine Wicker, “The Evangelical Swing Vote,” Huffington Post, May 16, 2008, https://www.huffingtonpost.com/christine-wicker/the-evangelical-swing​ -vot_b_102090.html. 41. Inderpal Grewal has used the term “military humanitarianism” to describe the Bush administration’s policy of using women’s human rights to justify U.S. military interventions in Afghanistan and elsewhere; see Grewal, Transnational America, 132. I use “militarized humanitarianism” in a more expansive sense, one that includes not only state-­sanctioned military interventions but also activists’ own application of carceral politics to the global stage. 42. Controversies arose in Phnom Penh, Cambodia, where “rescued” women used bedsheets to escape through the windows and climb to the ground in order to run back to the brothels from which they had been “liberated”; and also in India, where a local sex workers’ organization threw rocks at their rescuers. See Soderlund, “Running from the Rescuers”; and Samantha Power, “The Enforcer: A Christian Lawyer’s Global Crusade,” New Yorker, January 19, 2009, 52–­63. 43. Judy Aita, “Private Groups Spearhead Anti-­Trafficking Efforts,” United States Diplomatic Mission to Italy, February 14, 2007, http://news.findlaw.com/wash/​s/​2007​ 0214/20070213141131.html. 44. Power, “The Enforcer.” 45. Grewal, Transnational America, 142. 46. Field notes, January 7, 2009, on file with the author. 47. Dawn Herzog Jewell, “Red-­Light Rescue: The ‘Business’ of Helping the Sexually Exploited Help Themselves,” Christianity Today, January 2007, 28–­37. 48. See Amy Wilkins, “‘Happier Than Non-­Christians’: Collective Emotions and Symbolic Boundaries among Evangelical Christians,” Social Psychology Quarterly 71, no. 3 (2008): 281–­301. 49. Practices of humanitarian tourism reach their pinnacle in the social justice “reality tours” that both evangelical and secular groups have sponsored, including a sex trafficking tour of Cambodian red-­light districts that is jointly sponsored by the evangelical Not for Sale Campaign and the secular-­progressive organization Global Exchange (see http://www.globalexchange.org/). 50. See www.notforsalecampaign.org. 51. Agustín, Sex at the Margins. 52. Elena Shih, “Humanitarian Work: The Production and Consumption of ­Jewelry Made by Trafficked Women” (MA thesis, UCLA, 2009). 53. As Shih (2009) describes, many of the women who participate in the “rehabilitation” projects are non-­Christians, who regard their daily prayer sessions as part of their new jobs. 54. Bumiller, In an Abusive State, 136. 55. Slogan of VAMP, a sex workers’ collective in India. 56. Prominent examples include Chandra Talpade Mohanty, Feminism without Borders: Decolonizing Theory, Practicing Solidarity (Durham, N.C.: Duke University Press, 2003); Grewal, Transnational America; and Sharma, “Anti-­Trafficking Rhetoric and the Making of a Global Apartheid.”

54

Elizabeth Bernstein

57. See, e.g., E. Benjamin Skinner, “Obama’s Abolitionist.” Huffington Post, March 25, 2009, https://www.huffingtonpost.com/entry/obamas-abolitionist_b_178781​ .html. 58. See, e.g., Ann D. Jordan, “Annotated Guide to the Complete UN Trafficking Protocol” (Washington, D.C.: International Human Rights Law Group, 2002), http:// lastradainternational.org/lsidocs/UN%20Trafficking%20Protocol_Ann%20Jor​ dan.pdf. 59. See, e.g., Jennifer Steinhauer, “To Cut Costs, States Relax Prison Policies,” New York Times, March 24, 2009, https://www.nytimes.com/2009/03/25/us/25prisons​ .html; Michael Jacobsen, Downsizing Prisons: How to Reduce Crime and End Mass Incarceration (New York: New York University Press, 2005); Adam Liptak, “Right and Left Join Forces on Criminal Justice,” New York Times, November 24, 2009, https://www.nytimes.com/2009/11/24/us/24crime.html. 60. Denise Grady, “After a Devastating Birth Injury, Hope,” New York Times, February 23, 2009, http://www.nytimes.com/2009/02/24/health/24hospital.html. In March 2012, such attention quickly galvanized around the remarkable “KONY 2012” social media campaign, which featured the most downloaded video in the history of the Internet. The video was made by the evangelical Christian group Invisible Children and urged a broad secular and Christian constituency to support the arrest of the leader of the Lord’s Resistance Army and the elimination of child soldiers through militarized humanitarian techniques. See, e.g., Elizabeth Flock, “KONY Campaign Gets Support from Obama, Others,” Washington Post, March 8, 2012.

CHAPTER 3

The Charybdis of Rape Myth Discourse HELEN REECE

In the United Kingdom, as elsewhere, rape has long been a focus of feminist campaigning and concern, and the resultant reform is a symbiosis of success and failure. On the one hand, England and Wales have experienced what one feminist has described as “a golden age of law reform,”1 to such an extent that some of the staunchest feminist critics of the previous framework believe that the regulatory regime is now acceptable, or that further statutory reform is futile, or both. Concurrently, and arguably relatedly,2 there has been a rise in rape reporting across northern and western Europe, which is most pronounced in England and Wales.3 On the other hand, the number of rape convictions has not kept pace. This paradox, of “good law but disappointing results,” 4 has led many governance feminists to turn closer attention to attitudes to rape. In essence, their argument is that reform has proved relatively ineffective because a range of agents, from judges to the general public, hold “rape myths.” Standard examples of rape myths include the following: rape is an attack by an armed stranger on a woman who physically resists, so we can dismiss claims of rape among intimates, by unarmed men, and where women acquiesce; women commonly lie about rape; some women’s behavior means they are “asking” to be raped; and some women are to blame for being raped.5 In what follows, I describe feminist concern with and challenge of rape myths as “feminist rape myth discourse,” and I refer to this body of ideas, where it may have

55

56

Helen Reece

trickled into the popular consensus and may not be voiced by feminists,6 as “rape myth discourse.” The benefits for feminists of promoting rape myth discourse are apparent; rape myth discourse at times reinforces extremely important precepts about women’s sexual autonomy, which is undoubtedly of foundational importance. Even so, I have previously argued that rape myth discourse has become overexpansive.7 In what follows, I look at why this expansion comes at a cost, to both feminism and women. I argue that, when some feminists make the accusation that others are voicing rape myths, it gives those feminists a devastating rhetorical rock to hurl at their opponents, the only apparent criterion being that these feminists disapprove of the views that are being expressed by others. To add to the damage, even though statements described by feminists as rape myths may not necessarily be false or even inaccurate, applying the label of rape myth to these assertions leaves a stain of falsehood on them, particularly when the accusation of rape myth shifts from the academic to the policy and media worlds. Indeed, even factual statements may sometimes be categorized as rape myths—­but not necessarily: it depends on who says them, how they are said, and for what purpose. Finally, rape myth discourse reaches still further to foreclose other imagined sexual worlds, prescribing a sexual terrain for us that is neither too seedy (involving non-­normative sex that some feminists may regard as ethically suspect but others find vital and life-­a ffirming), nor too straight (based around the hyper-­ traditional heteronormative dynamic of man as predator and woman as prey).

English Rape Law, Rape Myths, and Feminist Rape Myth Discourse In England and Wales, the modern era of feminist law reform arguably dates back to the Sexual Offences (Amendment) Act 1976, which inter alia clarified that rape was based on non-­consent, not force, and which restricted the use of sexual history evidence. Since then, the legal definition of rape has steadily expanded, to include marital rape,8 as well as anal and oral rape and thereby male victims,9 and evidential reform has kept pace: notably, the Youth Justice and Criminal Evidence Act 1999 further restricted sexual history evidence.10



The Charybdis of Rape Myth Discourse

57

Reforms have been far from confined to the legislative arena: at the key stages of the criminal justice process, there has been significant specialization, alongside special training and detailed guidance. In addition, a range of more specialized services, notably Sexual Assault Referral Centers, which offer a range of immediate, short-­, and longer-­ term forms of support to rape victims, have been developed.11 ­Although further proposals have been made, the “2010 Stern Review: A Report by Baroness Vivian Stern CBE of an Independent Review into How Rape Complaints Are Handled by Public Authorities in England and Wales,” appointed by the Government Equalities Office and the Home Office, concluded: “In the extensive literature about rape, most of the suggestions made for ways of increasing the number of rapes that are reported to the authorities and undertaking successful prosecutions have been adopted as policy. . . . The policies are the right ones and we have few changes to recommend to these.”12 The Sexual Offences Act 2003 represents something of a watershed in efforts at feminist rape law reform. It clarifies the parameters of consent by stating that “a person consents if he agrees by choice, and has the freedom and capacity to make that choice,”13 introducing an affirmative standard of consent.14 Alongside the clarification of consent, the Sexual Offences Act introduced the widely welcomed stipulation that for mens rea to be absent, the defendant’s belief in consent must be reasonable.15 Although some feminists propose further law reform,16 there is widespread agreement that the Sexual Offences Act is an “enlightened regime,”17 and at the very least, the Act is seen as representing significant improvement.18 Concurrently, and arguably relatedly,19 there has been a substantial rise in rape reporting; this rise in reporting is at its most pronounced in England and Wales but is also evident in Belgium, Estonia, Finland, Germany, Iceland, Ireland, Italy, Lithuania, Scotland, Sweden, and Switzerland.20 In 2014 in England and Wales, the number of recorded rapes was 29,265;21 compared with 1,842 in 1985,22 this represents an increase of nearly sixteenfold in the last twenty-­nine years. In contrast, the number of rape convictions has not kept pace with rising rape reports. England and Wales is arguably the paradigm of the discrepancy between rape convictions and rape reports, but this discrepancy is also evident in most other European countries, and particularly in Ireland, Scotland, and Sweden,23 as well as in Australia and Canada.24 Thus, in

58

Helen Reece

England and Wales, in 1985, there were 450 rape convictions,25 and in 2014, there were 2,581,26 an increase of a little under sixfold.27 This juxtaposition of feminist-­inspired rape law reform but no commensurate increase in rape convictions has led many erstwhile feminist law reformers to focus more closely on attitudes to rape. In essence, the argument is that reform has proved relatively futile because of the persistence of “rape myths.” It is uncontroversial that feminists have pioneered and promoted the critique of rape myths28 so successfully that feminist rape myth discourse has to some extent now become the consensus, if not common sense.29 Feminists have thereby to some extent bucked the tendency that Janet Halley has pinpointed of feminists to have a “profound commitment . . . to an understanding of themselves as utterly without power.”30 In particular, feminist rape myth discourse is entrenched within the criminal justice system, an essential part of the education of a whole range of criminal justice practitioners.31 This provides an excellent illustration of Janet Halley’s insight: As these feminist governmentalities become legal, social, cultural and/or ideological common sense, they disappear into the light of common day. Studying them is like watching a drop of water hitting the larger pool of water below: at first we see ripples, but soon the surface is perfectly smooth and the drop dissolves into the whole. The specifically feminist character of the legal intervention disappears.32

The feminist benefits of bolstering rape myth discourse are apparent; on occasions, rape myth discourse underlines women’s sexual autonomy, which is without doubt crucial—­to feminism, and for women. However, in what follows, I look at why rape myth discourse comes at a cost, to feminism and to women. In essence, I express concern about the rhetorical power that is gained from describing a normative opinion or even an accurate belief as a “rape myth,” as this places the point under attack beyond discussion. This means that rape myth discourse can function to close down debate, including, as Halley put it, around “conflicts among feminists about what worlds to imagine.”33 Below, I demonstrate how opinions become myths, how opinions are also considered false, how facts become myths, and finally how rape myths foreclose alternative sexual worlds.



The Charybdis of Rape Myth Discourse

59

Opinions Become Myths In the years since Susan Brownmiller laid the framework for feminist rape myth discourse,34 and Martha Burt first formally defined rape myths,35 the definition of the rape myth has developed in various ways.36 Currently the standard definition of rape myths is “descriptive or prescriptive beliefs about rape . . . that serve to deny, downplay or justify sexual violence that men commit against women.”37 In other words, rape myths are defined by the purpose they fulfill—­the job that they do. As Joanne Conaghan and Yvette Russell put it, “the prescriptive dimensions of rape myths [are] the key concern animating rape myth research.”38 The problem is that the question of which beliefs do “serve to deny, downplay or justify sexual violence” is contested and contestable, including within feminism. So, pursuant to the definition, any of the following beliefs can be described as a rape myth: women who have been raped do not necessarily suffer lifelong trauma—­women can, and should be encouraged to, recover from and move on from their victimization; the conviction rate for rape is not as low as is sometimes suggested; there may be other problems that women face that are as, or even more, pressing in the aggregate than sexual violence; and only certain forms or levels of coercion should vitiate consent. These are a few out of many possible beliefs that some feminists hold,39 and should be allowed to express, without running the risk of being accused of voicing rape myths. The degree to which the contents of the rape myth are contestable has been exacerbated following a relatively recent adjunct to the definition of “rape myth”: in the view of some promoters of feminist rape myth discourse, describing an opinion as a rape myth no longer requires an absence of truth, nor even a lack of evidential support. This is highly counterintuitive, as when most people hear “myths,” they think “false.” (Think of reading the headline “Six Stubborn Myths about Cancer” in the Guardian newspaper.40) It had long been a minimal stipulation of rape myth methodology that rape myths should be demonstrably false, but rape myth researchers Heiker Gerger, Hanna Kley, Gerd Bohner, and Frank Siebler moved away from this in 2007, stating that “it would be more expedient to define rape myths not as false, but rather as ‘wrong’ in an ethical sense.” 41 I am startled that, under their increasingly influential

60

Helen Reece

definition,42 even a factually accurate statement may be categorized as a myth. Although perhaps most baldly laid out by Gerger et al., U.K. feminist legal academics Joanne Conaghan and Yvette Russell assert that the idea that the rape myth includes a belief that is accurate (or true) but ethically objectionable is unexceptionable within feminist rape myth discourse.43 When the chips are down, what this means is that a rape myth is a view that (some) feminists disapprove of. And what a damaging rhetorical stone to throw, when feminists get to describe a view they do not share as a “rape myth.” Calling your adversary a “rape myth propagator” is guaranteed to put him or her on the back foot, to say the least. In the United Kingdom, this rhetorical tactic causes rampant defensiveness among those who may end up stoned. When a commentator expresses a view that departs from feminist rape myth discourse, it is almost invariably swiftly followed—­and often preceded—­by a fulsome apology, in the hope of avoiding consequences such as moral condemnation and, even worse, social shaming or the loss of a job. A good example is that of Judy Finnigan, a U.K. television presenter. Making her debut as a presenter of the TV discussion show Loose Women on October 13, 2014, she was defending the liberal democratic principle of rehabilitation of offenders, specifically the view that Ched Evans, a footballer convicted of rape, should be permitted to return to professional football after he had served his prison sentence. This could have been an unpopular position in itself. Much more unpopularly, though, she wanted to voice her opinion that the rape that Ched Evans was convicted of—­ having sexual intercourse with a woman who was too drunk to have been capable of consenting—­was not the most heinous form of rape. Her hesitation and defensiveness before voicing this “rape myth” indicate that she was well aware of the condemnation lying in wait for her: The rape, and I am not, please, by any means, er, minimizing any kind of rape, but the rape was not violent. He didn’t cause any bodily harm to the person. It was unpleasant, in a hotel room, I believe, and she was, she had far too much to drink. And you know, that is reprehensible, but he has been convicted and he has served his time.44

She was right to be apprehensive: “before the programme had even finished, hundreds of viewers had taken to social media to express their



The Charybdis of Rape Myth Discourse

61

outrage,” 45 with the U.K. broadcasting watchdog Ofcom receiving twenty complaints.46 Two substantive responses to Finnigan’s comments that were prominently reported in the media were that rape is rape,47 and that this rape was violent (voiced in the Daily Mail by a woman whom the newspaper described as a “women’s rights campaigner”).48 A spokesperson for Rape Crisis England and Wales explained in detail the problems the organization saw with Finnigan’s remarks: Judy Finnigan’s comments are really unfortunate and could potentially cause some hurt and distress to the many survivors of sexual violence who will inevitably have been watching Loose Women and who will read and hear her views reported. Whether intentionally or not, her words do imply that rape that involves extreme physical violence is more traumatic than rape that does not. Rape is a violent act in itself, all rape causes bodily harm and all rape is a lot more than “unpleasant” regardless of the circumstances in which it takes place. Rape is a terrifying experience that can and does have a wide ranging of long-­term and even lifelong impacts for those who survive it.49

Many viewers described Finnigan’s remarks as “insensitive,”50 and “thousands of viewers complained online”51 that her remarks were “damaging” and even “disgusting.”52 The Daily Mail’s “women’s rights campaigner” accused Finnigan of “internalised misogyny,”53 and the Daily Mail quoted a woman who tweeted that Finnigan was “justifying rape.”54 There were calls on Twitter from viewers for Finnigan to be fired and the show boycotted.55 While no doubt many of these complaints did not come from viewers who consciously identified as feminists, the substance of the complaints conform with feminist rape myth discourse, illustrating Halley’s point that, as feminist governmentalities become common sense, it is like “watching a drop of water hitting the larger pool of water below.”56 Finnigan’s apology before accordingly did not exempt her from the apology after, which saw her distancing herself from the “rape myth” but retaining her defense of rehabilitation, a combination that allowed her to keep her job:57 I absolutely wasn’t suggesting that rape was anything other than a horrendous crime and, as I said on the programme, I was in no way

62

Helen Reece

attempting to minimise the terrible ordeal that any woman suffers as a result. The point I was attempting to raise as part of the debate was what should happen to someone after they have committed a crime and served their time. I apologise unreservedly for any offence that I may have caused as a result of the wording I used.58

What is wrong with this treatment of Finnigan? Feminists have fought hard for rape to be recognized when women are subjected to sexual activity to which they are incapable of consenting, as this gravely breaches sexual autonomy. If Finnigan is jeopardizing this step forward, why shouldn’t she be forced onto the defensive by being told very firmly, “You can’t say that”? To reinforce the justification for shutting Finnigan down, feminists could try to mold her comment into a factually false statement. Feminists can (and did) dispute that the rape was “not violent,” that he “didn’t cause any bodily harm” to the person, and here the legal definitions of violence59 and bodily harm60 could be prayed in aid. However, the definitions of “violence” and “bodily harm” are shifting, constructed, and contested.61 Also, it is plain that what Finnigan—­likewise the judge in Ched Evans’s trial62—­meant by citing a lack of violence and bodily harm was that there was no physical injury additional or extraneous to the harm of rape itself. I think her comments taken as a whole are most reasonably interpreted as a normative statement, albeit one that contains a factual component.63 So, if we take her comments as a normative statement, is it one that is worth listening to? One of Finnigan’s more overt messages was that some rapes are more serious than others, creating a tension with the “rape is rape” message of feminist rape myth discourse. This seems an important discussion for feminists to keep open at the least. As well as its ramifications for the rehabilitation of offenders, deployment of police resources, and sentencing practices of U.K. judges, failure to countenance levels of heinousness may impact negatively on rape victims, who are thereby deprived of the possibility of determining for themselves the degree of seriousness of their own rape. Governance feminist Liz Kelly observes that while rape may well be heinous, “it also takes place in the messiness of everyday lives and can be far more mundane than many representations of it allow for.” 64 The representation of all rapes as existing at the same ultimate level of heinousness may thus silence,



The Charybdis of Rape Myth Discourse

63

disempower, and disorient those women who regard their own rape as departing from this representation. A refusal to contemplate that some rapes may be more serious than others also means that rape is in this respect sealed off from all other crimes, where we experience little difficulty in recognizing degrees of heinousness. Other implications of Finnigan’s comments may be more convincingly disputed by feminists. Her description of this rape as “unpleasant” seems to give rise to at least one, if not both, of the following implications: The first is that this rape was not just less serious than other rapes but also that it was not particularly serious; the second is that this rape was not unduly traumatic. In relation to the first implication, I believe that it is extremely serious to violate a woman’s choice whether to engage in sexual activity. In relation to the second implication, my view is that it is for the rape victim to describe, define, and interpret her own experience of and reaction to her rape. While I disagree with these implications of Finnigan’s comments, it does not follow that it is unhelpful to hear them. There is a feminist argument that both the seriousness and trauma of rape are, at least to some extent, socially constructed, and therefore that we create as well as describe the seriousness and trauma of rape. Moreover, the precept that it is for the rape victim to define her own experience is commonly breached—­it is in Rape Crisis’s reaction to Finnigan’s comments—­by feminist assertions that rape is necessarily traumatic, with effects that inevitably linger and how. The description of a rape as “unpleasant” could open up, for some women, the possibility of thus interpreting their experience.65 Nor do I accept the argument that Finnigan’s comments were “unfortunate” because they could cause hurt and distress to rape victims. Generally perhaps, hurt and distress are unproductive emotions, so it is a shame when they are evoked. However, their evocation is an unavoidable by-­product of an exchange of different opinions on a sensitive topic during a TV discussion show.66 All that said, even if Finnigan’s comment had been entirely unenlightening, describing it as a “rape myth” would still seem to me an unfair and underhanded debating strategy, an attempt to bypass the more demanding but ultimately more fruitful process of having and winning the argument for a progressive position. To shut her down, lock her out, and make her apologize before and after, if not during,

64

Helen Reece

the show seems to me a subtle form of censorship. And of course the sanctions in wait for those who voice normative opinions categorized as rape myths inhibit countless others from ever expressing such opinions, operating as a subtle but nevertheless highly effective form of censorship. Moreover, this subtle censorship is far more concerning when it penalizes those who depart from a discourse that has achieved some measure of power and influence, as has rape myth discourse, because speaking out against those with power and influence carries a higher risk of serious sanctions, such as loss of career advancement. Worse still, such subtle censorship of a viewpoint often “represents the prelude for the demand” 67 that it be censored more definitively. For if it is nothing but a rape myth, the argument is that nothing of value is lost by preventing it from polluting the airwaves. I have some personal experience of this process. In October 2013, I was invited by my employer, the London School of Economics (LSE) Law Department, to take part in a debate prompted by publication of my research on rape myths earlier that year.68 In my contribution to the debate, I essentially questioned the prevalence of rape myths, on the basis that some of the attitudes described as myths are not myths, and that the attitudes rightly described as rape myths are not as widespread as is suggested. An illustration that I gave in my speech was a U.K. public opinion survey that asked members of the public whether women are “responsible” for being raped in various circumstances and then interpreted and reported the answers as statements about “blame.” I pointed out that “responsibility” is a complex word, with connotations of blame but also of causation, and that because the survey gave participants the options of answering only “yes,” “no,” or “partly,” it was difficult to know what participants meant by a positive answer.69 Within a couple of weeks, feminists@law, an open-­access journal published by the University of Kent,70 produced an editorial to which they invited their readers to add their names in support—­an online petition.71 The editorial claimed that my arguments were “deeply problematic for two reasons: they appeal to existing rape myths in society and they fail to root their claims in evidence.”72 The aspect of my argument that feminists@law found “the most problematic” was my discussion of the public opinion survey.73 This was because, they argued, “the etymological difference between ‘responsibility’ and ‘blame,’ which Reece attempts to use, was either disingenuous or ill-­t hought



The Charybdis of Rape Myth Discourse

65

through in this public forum. . . . Stating that there is a distinction between blame and responsibility cynically elides the appeal to rape myths embedded in the argument itself.”74 Therefore, feminists@law “deplore[d] LSE Law’s decision to give a platform to [my] dangerous and unsupported views,”75 because this meant that my views had been legitimated:76 “With such a wide audience, we believe there is an onus on the LSE Law Department to ensure that the ideas that are being disseminated do not feed dangerous stereotypes about women being responsible for the sexual violence perpetuated against them.”77 Their conclusion was that, “as feminist academics we wish to condemn the decision of the LSE Law Department to hold this event and to continue to defend it.”78 My own experience provides an illustration of the endpoint of this danger of feminist rape myth discourse, in this clear call for censorship.

Falsehood Leaves a Stain The rhetorical power of the label “rape myth” is even greater than I have established so far, because even though feminist rape myth discourse does not define rape myths in terms of their falsehood, falsehood “leaves a stain on all your [arguments] and no detergent gets it out,” as singer Meat Loaf put it.79 This is because of differences in levels of rigor between the academic world and the policy world. In the academic world, rape myths are defined pretty carefully and consistently in terms of their normative dimension.80 However, the rape myth is not exclusively or even primarily an academic concept—­it is used extensively in the worlds of policy, media, and social media. As the term “rape myth” trickles down from the academic world to the policy world, the factual dimension—­ the implication of falsehood—­becomes ever stronger. Consider the Crown Prosecution Service’s Legal Guidance on Rape and Sexual Offences.81 This is not some fly-­by-­night Twitter hashtag—­ this is the authoritative legal guidance used by Crown prosecutors in the prosecution of criminal cases in England and Wales. Chapter 21 deals exclusively with “Societal Myths.” The extent to which this chapter reflects feminist rape myth discourse is remarkable—­clear evidence of the entrenchment of feminist rape myth discourse within the criminal justice system, presumably the product of a mixture of

66

Helen Reece

conscious campaigning by governance feminist lawyers and the absorption of feminist rape myth discourse into the mainstream. Unsurprisingly, the chapter opens with the question “What is a ‘Myth’?,” answering that it is “a commonly held belief, idea or explanation that is not true” (emphasis added). This seems pretty definitive. The “myths” in the chapter are indeed presented with their falsity to the fore. However, it is difficult not to acknowledge the normative nature of some of them. Take Myth 2, “Women Provoke Rape by the Way They Dress or Act,” and Myth 3, “Women Who Drink Alcohol or Use Drugs Are Asking to Be Raped.” There is little doubt that certain forms of a woman’s behavior increase the likelihood that she will be the victim of a rape, either because they increase her vulnerability or because they send out signals of sexual interest and availability. As Duncan Kennedy explains, this does not make women’s behavior a cause, let alone the cause, of rape, because even if all women behaved ultra-­cautiously, rapes would still occur—­probably just as many. As Kennedy notes, “It is not that [women’s behavior] ‘causes’ the reaction the way a germ causes a cold.”82 However, a woman’s behavior may contribute to her being the particular victim of a particular rapist at a particular moment. Accordingly, the wrongness in perpetuating Myths 2 and 3 is not a factual wrongness but a normative, ethical wrongness—­an ideological decision to focus negatively on the woman’s link in the causal chain.83 Similarly, it is difficult not to recognize contentious factual statements—­or, more precisely, overstatements of factually uncontentious kernels—­in Myth 6, “You Can Tell if She’s ‘Really’ Been Raped by How She Acts,” and Myth 7, “Women Cry Rape When They Regret Having Sex or Want Revenge.” In relation to Myth 6, feminist rape myth discourse holds—­rightly I believe—­that women respond to rape in diverse ways. However, because the dispute in a rape case typically turns on whether the woman consented, her state of mind is of critical importance; and for the adjudicator, the only route into the woman’s state of mind is via “her demeanour, words and actions before, during and after rape.”84 In assessing what, if anything, the woman’s reaction can tell us about whether she consented, the diversity of women’s reactions to rape “doesn’t mean that anything an alleged rape victim says or does, no matter how it defies common sense, reason and human experience,



The Charybdis of Rape Myth Discourse

67

must be rationalized as ‘that’s what some victims do!’”85 For if we do not examine some aspects of the woman’s behavior in order to assess whether she consented, we have no alternative but to take her word for it. This leads straight on to Myth 7: although the frequency of false allegations is extremely contentious,86 there is no doubt that there are cases—­some very well documented—­where women do “cry rape” when they have regrets or want revenge after consenting to sex. It must be open to a man accused of rape to argue that he is one of the unlucky few who faces this kind of complainant. Strong stress on the factual wrongness of rape myths is likewise evident in the media. We can profitably stay with the Finnigan example. In swift response to Finnigan’s comments, Rape Crisis coordinator Fiona Elvines responded in the Guardian under the heading “We Must Tackle the Reality of Rape and Dispel the Myths.”87 In the article, she expanded that survivors and workers in charities such as Rape Crisis Centres know all too well the realities of rape, and how often they conflict with what people may believe. . . . We know, and have seen in Judy Finnigan’s comments last week, the myth that there is a hierarchy of rape where those involving weapons or additional physical violence are somehow “worse” than those where sexual violence is the violence used.

Similarly, Radhika Sanghani writes in the Daily Telegraph: “Judy Finnigan Row: 7 Rape Myths Which Need Busting, Badly.”88 In the introduction to her piece, Sanghani explains that “Finnigan’s comments do sadly reflect a common societal misunderstanding of rape. . . . Often, we’re wrong, but it’s incredibly important that we all understand the reality.” The first “myth” that Sanghani takes Finnigan to task for is the one mentioned by Elvines, that “some rapes are worse than others.” Sanghani tells us that this is not just wrong, but “categorically wrong.” But if Finnigan’s assertion that “some rapes are worse than others” is best interpreted as a factual rather than a normative assertion, then it is far too complicated a factual assertion to be wrong, let alone categorically wrong. What might make a rape “worse” is a complex, multidimensional inquiry.89 Willingness to make a—­ legally if not factually—­authoritative assessment of which rapes are worse is indeed the bread-­and-­butter practice of the U.K. judicial sentencing structure.

68

Helen Reece

Manufacturing a factual wrongness in Finnigan’s comments allows the debate to be swiftly and decisively declared over, as happened in the next round of the Finnigan controversy. Journalist Sarah Vine wrote a comment piece defending Finnigan, in which she argued that Finnigan was merely “trying to introduce some nuance into the debate,” because “rape, like all wrongdoing, has many shades of grey.” Vine concluded that Finnigan “was simply trying to have a reasonable conversation about a serious and complex subject.”90 Later the same day, a blogger on feminist website everydayvictimblaming.com responded that she was “all for nuance,” but by treating the idea that “some rapes are worse” as reasonable, Vine was confusing nuance with rape myth. Vine was rebuked just for disagreeing with Sanghani’s assessment that this statement was categorically wrong: coming to the defense of this “rape myth” was firmly ruled out once Sanghani had denounced it.91 Once rape myths have been declared factually wrong and the debate accordingly declared over, governance feminists sponsoring the discourse have a freer hand in setting out their stall. Feminists cannot demand that the Crown Prosecution Service instruct a prosecutor to propagate feminist propaganda, but they can demand that the Crown Prosecution Service instruct him or her to avoid falsehoods about rape; they cannot ask the Judicial Training Board to train a judge to conduct a trial from a feminist perspective, but they can ask the Judicial Training Board to train a judge to avoid biases and prejudices about rape; feminists@law cannot demand that LSE offer a platform only to feminists, but they can condemn LSE for providing a platform to a speaker who disseminates “rape myths.” These shifts from feminist politics to feminism as truth re-­entrench the impossibility of discussion or disagreement on questions that governance feminists have foreclosed.

Facts Become Myths Rape myth discourse is still more ambitious than I have outlined so far, because even facts can be stigmatized as rape myths. As I recognized above, there is little doubt that certain forms of a woman’s behavior increase the likelihood that she will be the victim of a rape—­ the evidence is particularly strong in relation to being drunk,92 and



The Charybdis of Rape Myth Discourse

69

indeed I have rarely seen feminists dispute this statistical connection. But saying this involves treading very carefully if one does not want to be accused of spreading rape myths when stating this fact. Let’s look first at the terminology. Saying that getting drunk makes a woman responsible for being raped is a complete no-­no, and certainly the term “responsible” generally bears a normative implication. In contrast, bare, a-­contextual statements of causal connection or increased risk seem to me norm-­lite—­simply a reflection of factual reality. Nevertheless, in their studies, as one of four measures to assess whether research participants are attributing blame to the rape victim, Temkin and Krahé commonly use the question: “How likely do you think it is that C could have avoided the incident?” The right answer is “not at all.”93 And some feminists have clarified that the language of causal connection is indeed another no-­no: This strong association with alcohol reflects findings from other studies but, equally importantly, it does not demonstrate a causal relationship between consuming alcohol and subsequent victimisation. Rather, it indicates that victim intoxication is one of a number of vulnerabilities that can be identified and exploited to facilitate sexual assault by predatory men. (emphasis added)94

This passage points the way to the correct terminology, which is to express oneself in terms of women’s enhanced vulnerability. One speaker who gets the terminology right is governance feminist Betsy Stanko, who has spent the last decade working for the Metropolitan Police. Speaking at LSE in 2014, Stanko explained that “the significance of the vulnerability of victims has been noted but not noticed.”95 Her extensive research found that 90 percent of reported rape victims had a specific vulnerability, with some having multiple vulnerabilities. A prominent vulnerability was prior alcohol consumption. Stanko argued that it was crucial to recognize that a rape victim was likely to have a vulnerability, as this could lead to a helpful investigation into how the perpetrator may have exploited that vulnerability. To make this argument, Stanko had to state the strong statistical link between consuming alcohol and being raped. Was her careful and consistent use of the term “vulnerability” enough to permit her this? An audience member’s question showed that she for one was unsure:

70

Helen Reece

I’m a bit worried about the shift to vulnerability, especially with regards to for instance drug or alcohol consumption . . . that that might still trigger . . . the blame game when . . . because you’ve taken drugs or alcohol you are considered vulnerable, but on the flipside if you know that taking drugs or consuming alcohol makes you vulnerable then you shouldn’t have done it because you know that you might get raped, and it reminds me of the conversation about . . . what you wear might get you raped. . . . I’m worried that the vulnerability argument might lead us to stay on that, so how do we stop that risk?

Stanko replied: That comes up quite a lot. . . . You know I’ve studied sexual violence, physical violence 25–­30 years before I went in to the police service . . . so I studied science; now what surprised me . . . was the extent of vulnerability of the reported cases, and that should not be dismissed. . . . Absolutely no way does that mean going down to a victim-­blaming stance. But . . . vulnerability is I suggest . . . targeted, exploited . . . So I do consider it is a dilemma. Because we have misogynist discourse shouldn’t mean we should shy away from what is happening. I understand misogyny and victim-­blaming but what I’m saying is we should not silence the data to tell us that that is exactly what is going on.

This illuminating exchange tells us first of all that even when the correct terminology is used, some facts still worry some feminists, to the extent that they wonder whether those facts would be better not voiced. Second, though, this exchange points the way to another important dimension of speaking facts, and that is the speaker’s purpose in voicing them. While facts may be neutral, their use is rarely, if ever, so. We could hardly hope for a better example of this point than the fact in hand. Stanko recognized the correlation between alcohol consumption and rape because she wanted to clarify that the complainant’s intoxication was likely to have been exploited by the defendant, and accordingly inter alia that the complainant’s drunkenness could give credence to, rather than cast doubt on, her rape allegation. Stanko defends her assertion of the statistical link by citing her feminist purpose. On this analysis, facts could perhaps count as rape myths only if cited for a



The Charybdis of Rape Myth Discourse

71

reactionary end. Consistently with what I have written so far, I would of course dispute this use of the term “rape myth.” Feminists should vigorously challenge regressive conclusions, while accepting any accurate factual premises that are being used to draw those conclusions. Determining which conclusions are regressive is, of course, neither straightforward nor beyond discussion. One particularly fraught issue is whether the statistical link between certain forms of women’s behavior and being raped should ever be allowed to imply that women should (be advised to) adapt their behavior to minimize the risk of rape to themselves. Canadian Police Constable Michael Sanguinetti proffered such advice, with the words “I’ve been told I’m not supposed to say this—­however, women should avoid dressing like sluts in order not to be victimised.”96 Sanguinetti’s factual premise may or may not be accurate—­certainly Duncan Kennedy also believes that “sexy dressing” may precipitate particular incidents of victimization.97 Sanguinetti’s overt purpose was to give women safety advice. Not only was he  accused of promoting rape myths,98 but he sparked worldwide SlutWalks.99 But how is Sanguinetti’s approach different from that of Barbara Krahé, a renowned feminist rape myths researcher? She tested adolescents’ sexual scripts for behavioral risk factors for sexual aggression and victimization,100 the three risk factors being “the consumption of alcohol in the context of sexual interactions, the tendency to conceal one’s true sexual intentions through ambiguous communication, and the readiness to engage in sexual contact after no or only a brief period of acquaintanceship with the partner.”101 In relation to women’s sexual victimization, she found that women’s victimization varied neither with their normative acceptance of these risk factors, nor with their own self-­reported risky sexual behavior.102 In contrast, however, she found that “victimized women hold cognitive representations of consensual sexual interactions that include more risk elements than those of non-­v ictimized women.”103 Accordingly, she concludes: These findings have significant implications for rape education efforts directed at the cognitive antecedents of sexual aggression. . . . Attempting to change individuals’ cognitive representation of consensual sexual interactions with a focus on those factors known to be related to the risk of sexual aggression may provide an alternative approach to rape

72

Helen Reece

prevention. Challenging the normative acceptance of entering into sexual relations with partners one hardly knows, of seeing alcohol as an integral part of a sexual encounter and misleading the partner about one’s sexual intentions may not only lead adolescents to handle their consensual sexual relationships in a more responsible way but may also help to reduce the likelihood of sexual aggression.104

In other words, Krahé wants to “change the script” of a consensual sexual encounter, for young women as well as young men, through rape education measures, so that the script of a consensual sexual encounter no longer includes these risky behavioral factors—­a narrowing down of the script for consensual sex. Young women, as well as young men, need to be taught to see consensual sex more responsibly. Krahé’s approach is certainly more prescriptive than Sanguinetti’s. Being told what (not) to wear is irksome, I agree, but it is nowhere near as constricting as being reeducated so that you no longer see casual sex, drunken sex, and even leading someone in a merry sexy dance as part of the consensual sexual script. Is it then simply that governance feminists allow themselves a freer hand than their ­adversaries—­if Krahé says it, then it is a helpful policy recommendation; if Sanguinetti says it, it is nothing but a rape myth? This adds yet another layer to the foreclosure of debate through the rape myth—­ governance feminists allow themselves to make assertions that they do not allow others to make.

Rape Myths Foreclose Alternative Sexual Worlds Krahé’s prescriptive approach to consensual sex points to another way in which rape myth discourse may foreclose discussion: it may close down discussion about “what [sexual] worlds to imagine.”105 Specifically, David Gurnham has perceptively observed that rape myth discourse may jeopardize what he describes as non-­normative, or “seedy,” sex.106 Gurnham performs a careful analysis of one particular research study, by Maddy Coy, Liz Kelly, Fiona Elvines, Maria Garner, and Ava Kanyeredzi at the Child and Woman Abuse Studies Unit in London Metropolitan University, published by the Office of the Children’s Commissioner.107 Gurnham documents the researchers’ “failure to distinguish between two quite separate questions:



The Charybdis of Rape Myth Discourse

73

whether consent was negated by constraint on the one hand, and the normative quality of the sexual activity in question on the other.”108 Coy et al.’s research involved inviting a large group of young people to view and then respond to a series of short films depicting fictional scenarios. Gurnham focuses on two scenarios. The first involves a fourteen-­year-­old girl who is filmed having sex with three boys, the boys having previously made crude comments including that the girl should “show some effort,”109 and having snatched the girl’s phone, offering to return it only if she kissed them. The second involves a thirteen-­year-­old girl giving a fourteen-­year-­old boy oral sex. The boy instigates sexual activity by showing the girl pornography and is forceful during the sexual activity, holding the girl’s head down until he is finished. Afterward the girl just wants to go home.110 Both of these scenarios could be coercive. It could be that the fourteen-­year-­old girl felt that she had no choice but to have sex with the boys once they had snatched her phone; it could be that the thirteen-­ year-­old girl wanted to bring the oral sex to an end but was unable to because she was being physically restrained. In the case where these scenarios were coercive, it is still an open question whether either constitutes rape. But the scenarios can also be viewed as more benign, with the girls playing willing parts in non-­normative sexual scripts involving domination and submission, role play, and game playing. We cannot establish coercion from the presence of group sex or the use of pornography, for example. To decide between benign and coercive interpretations, we would need to know how the girls viewed the scenarios. However, despite the fact that we are given no further information about the girls’ own thoughts or feelings, Gurnham comments that for Coy et al., these details are sufficient to indicate that there was no consent to the sex. For the research participants to decide otherwise is proof for Coy et al. that they have fallen prey to the victim-­blaming rape myth: respondents who suggested that the girls may have been capable of exercising any kind of agency are admonished by the researchers for “implicating” the victim for “inviting” their own rapes.111 But Gurnham questions the equating of the girls’ opportunities to speak up, and their failure to take these opportunities, with victim blaming, for if we are to

74

Helen Reece

avoid marginalizing or stigmatizing certain kinds of sexualities and practises that attract obvious suspicion and disapproval from a moral point of view, this means concerning ourselves instead with the opportunities that a potential complainant might have had or not had for offering a refusal in the circumstances she found herself in.112

Gurnham reinforces the point by examining the study’s control scene, which involves a committed couple in the bedroom engaging in very mild sexual activity with very little genital contact, the boy immediately backing off when the girl “flinches” upon touching his penis. This control scene is designed to depict true consent but, as Gurnham nicely puts it, it “oozes sexual normativity,” too.113 Gurnham concludes perceptively: In Coy et al.’s analysis of the scene, the sense of coercion is not established by scrutinizing . . . opportunities to refuse, and the reason for this seems to be that [Coy et al.] believe that such scrutiny inevitably constitutes victim-­blame. What supplies the necessary “proof” of coercion therefore is the normative quality (i.e. the seedy quality) of the sexual behaviour described, which is not necessarily connected to consent at all. In other words, we are directed to . . . activities that Coy et al. seem to believe no young woman would or could freely consent to, and thus such a scene could only be a description of a rape.  .  .  . What Coy et al. at no point consider [is] whether the respondents who were doubtful about it as depicting a rape may simply have recognized . . . elements of a particular sexual script involving initiation and domination.114

Rape myth discourse forecloses not just seedy sex but also hyper-­ straight sex, namely, sex that follows the über-­traditional heteronormative script where the man pursues and the woman is pursued.115 Rape myth discourse prohibits as a rape myth the view that a man may be entitled to “read off” a woman’s consent to sex from particular aspects of the woman’s behavior. For rape myth discourse, this is far too risky an approach.116 This is, of course, part of the rationale for the adoption of affirmative consent standards.117 Specifically, the definition in the Sexual Offences Act that “a person consents if he agrees by choice, and has the freedom and capacity to make that choice”118 requires affirmative consent because it appears to demand agreement, rather



The Charybdis of Rape Myth Discourse

75

than the absence of dissent.119 More prosaically, this is the rationale for Coy et al.’s control scene, where the boy ran little risk of pushing the girl too hard. But the problem is that some women do like to indicate their consent to sex through even subtle aspects of their behavior.120 Some men like to pursue, and some women like to be pursued.121 There is no way around this: it is not possible to hold on to both rape myth discourse and the traditional heterosexual script where the man takes and the woman is taken.122 Here it is crucial to distinguish between the scenario where the woman’s absence of sexual consent is overridden—­which is, of course, rightly criminal—­and the scenario where the parties act as if the woman’s absence of sexual consent is being overridden. What do we do where both partners enjoy the hunt? What do we do about the game of sexual subjugation?123 To be a good game, it has to feel real.124

Conclusion I have argued that, although rape myth discourse at times reinforces extremely valuable precepts about women’s sexual autonomy—­which is undoubtedly of foundational importance, to feminism and to women—­rape myth discourse simply reaches too far. Because a rape myth has come to be defined as a view that is ethically wrong, not necessarily factually inaccurate, it gives feminists a destructive rhetorical weapon to wield against their adversaries, the only real criterion being that feminists disapprove of the views their adversaries are voicing. To add to the carnage, even though the label “rape myth” does not imply “falsehood,” it leaves a stain of falsehood on the assertion, particularly when the concept of rape myth shifts from the academic to the policy and media worlds. Perhaps unsurprisingly, given the definition, even factual statements may become categorized as rape myths, with their status as rape myth switching depending on the terminology, purpose, and speaker. Finally, rape myth discourse reaches still further to foreclose the full range of possible sexual worlds, prescribing a sexual terrain for us that is not too conventional and not too seedy. The subject of rape is so fraught and so complex, and the challenges before us so new, that the current climate in which people are severely chastised, even punished, for departing from a narrow orthodoxy is

76

Helen Reece

dangerous. The positive core at the heart of feminist rape myth discourse is concern and respect for women’s sexual autonomy. I suggest, however, that we will better show concern for women’s sexual autonomy if genuinely open discussion about important questions—­such as, to name but a few, the boundaries of consent, the conviction rate, the diverse correlate circumstances, and effects of rape—­allows us to express, and thereby refine and develop, our perspectives. We can better respect women’s sexual autonomy if women, and also men, are allowed a wider, more open sexual terrain. We should preserve the term “rape myth” for statements that are as a minimum false or inaccurate, and we should mount a strong defense of women’s sexual autonomy to challenge and defeat what we determine to be normatively regressive opinions. In short, at the same time as we beware the Scylla of the genuine rape myth, we should also beware the Charybdis of rape myth discourse.

Notes 1. Jennifer Temkin, “‘And Always Keep A-­Hold of Nurse, for Fear of Finding Something Worse’: Challenging Rape Myths in the Courtroom,” New Criminal Law Review 13, no. 4 (Fall 2010): 710. 2. See Kathleen Daly and Brigitte Bouhours, “Rape and Attrition in the Legal Process: A Comparative Analysis of Five Countries,” Crime and Justice 39 (December 2010): 581. 3. See Jo Lovett and Liz Kelly, Different Systems, Similar Outcomes? Tracking Attrition in Reported Rape Cases across Europe (London: Child and Women Abuse Studies Unit, 2009), 19–­20. 4. Many feminists have treated the conviction rate as a measure of reform success: see Emily Finch and Vanessa Munro, “Breaking Boundaries? Sexual Consent in the Jury Room,” Legal Studies 26, no. 3 (September 2006): 305; Jennifer Temkin and Barbara Krahé, Sexual Assault and the Justice Gap: A Question of Attitude (Oxford: Hart Publishing, 2008), 9; Louise Ellison, “Commentary on R v A (No 2),” in Feminist Judgments: From Theory to Practice, ed. Rosemary Hunter, Clare ­McGlynn, and Erica Rackley (Oxford: Hart Publishing, 2010), 205. However, some feminists have queried this measure: see Wendy Larcombe, “Falling Rape Conviction Rates: Some (Feminist) Aims and Measures for Rape Law,” Feminist Legal Studies 19, no. 1 (April 2011): 27. 5. See Helen Reece, “Rape Myths: Is Elite Opinion Right and Popular Opinion Wrong?,” Oxford Journal of Legal Studies 33, no. 3 (Autumn 2013): 456–­72. 6. See Janet Halley, Where in the Legal Order Have Feminists Gained Inclusion?,” in Janet Halley, Prabha Kotiswaran, Rachel Rebouché, and Hila Shamir, Governance Feminism: An Introduction (Minneapolis: University of Minnesota Press, 2018), 6. 7. Reece, “Rape Myths.”



The Charybdis of Rape Myth Discourse

77

8. R v. R [1992] 1 AC 599, confirmed by the Criminal Justice and Public Order Act 1994. 9. Sexual Offences Act 2003. 10. On evidential reform, see also Criminal Justice and Public Order Act 1994. 11. Baroness Stern, The Stern Review (London: Government Equalities Office, 2010). 12. Ibid., 115. 13. Sexual Offences Act 2003, §74. 14. Vanessa Munro, “Constructing Consent: Legislating Freedom and Legitimating Constraint in the Expression of Sexual Autonomy,” Akron Law Review 41, no. 4 (2007–­2008): 935; Finch and Munro, “Breaking Boundaries?,” 304; Sharon Cowan, “‘Freedom and Capacity to Make a Choice’: A Feminist Analysis of Consent in the Criminal Law of Rape,” in Sexuality and the Law: Feminist Engagements, ed. Vanessa Munro and Carl Stychin (Abingdon, U.K.: Routledge-­Cavendish, 2007), 62. 15. Sexual Offences Act 2003, §1(1)(c). 16. See Vanessa Munro, “From Consent to Coercion: Evaluating International and Domestic Frameworks for Criminalization of Rape,” in Rethinking Rape Law: International and Comparative Perspectives, ed. Clare McGlynn and Vanessa Munro (Abingdon, U.K.: Routledge-­Cavendish, 2010). 17. Temkin, “’And Always Keep A-­Hold of Nurse,’” 711. See also Liz Kelly, “Contradictions and Paradoxes: International Patterns of, and Responses to, Reported Rape Cases,” in Sex as Crime, ed. Gayle Letherby, Kate Williams, Philip Birch, and Maureen Cain (Uffculme, U.K.: Willan Publishing, 2008), 268; Vanessa Munro, “An Unholy Trinity? Non-­Consent, Coercion and Exploitation in Contemporary Legal Responses to Sexual Violence in England and Wales,” Current Legal Problems 63, no. 1 (2010): 45–­71. 18. Munro, “An Unholy Trinity?,” 925; Nicola Lacey, “Beset by Boundaries: The Home Office Review of Sex Offences,” Criminal Law Review (January 2001): 12; Clare McGlynn, “Feminist Activism and Rape Law Reform in England and Wales: A ­Sisyphean Struggle,” in McGlynn and Munro, Rethinking Rape Law, 150; Jennifer Brown, Miranda Horvarth, Liz Kelly, and Nicole Westmarland, Has Anything Changed? Results of a Comparative Study (1977–­2010) on Opinions on Rape (London: Government Equalities Office, 2010), 43. 19. See Daly and Bouhours, “Rape and Attrition in the Legal Process,” 581. 20. See Lovett and Kelly, Different Systems, Similar Outcomes?, 19–­20. 21. Office for National Statistics, Crime in England and Wales, Year Ending March 2015, https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice​ /bulletins/crimeinenglandandwales/2015-07-16. 22. See Liz Kelly, Jo Lovett, and Linda Regan, A Gap or a Chasm? Attrition in ­Reported Rape Cases (London: Home Office Research, Development and Statistics Directorate, 2005), 25. 23. See Lovett and Kelly, Different Systems, Similar Outcomes?, 22. 24. See Daly and Bouhours, “Rape and Attrition in the Legal Process,” 602. 25. Kelly, Lovett, and Regan, A Gap or a Chasm?, 25. 26. Crown Prosecution Service, Violence against Women and Girls Crime Report (London: Crown Prosecution Service, 2015), 47.

78

Helen Reece

27. For discussion, see Reece, “Rape Myths,” 448–­51. 28. Ibid., 451–­52. 29. See Joanne Conaghan and Yvette Russell, “Rape Myths, Law, and Feminist  ­Research: ‘Myths about Myths’?,” Feminist Legal Studies 22, no. 1 (April 2014): 26. 30. Janet Halley, Split Decisions: How and Why to Take a Break from Feminism (Princeton, N.J.: Princeton University Press, 2006), 14. 31. See, e.g., Office for Criminal Justice Reform, Convicting Rapists and Protecting Victims—­Justice for Victims of Rape (London: Office for Criminal Justice Reform, 2006). 32. Halley, “Where in the Legal Order Have Feminists Gained Inclusion?” 33. Ibid. 34. Susan Brownmiller, Against Our Will: Men, Women and Rape (New York: Bantam Books, 1975). 35. Martha R. Burt, “Cultural Myths and Supports for Rape,” Journal of Personality and Social Psychology 38, no. 2 (February 1980): 217–­30. See Gerd Bohner, Friederike Eyssel, Afroditi Pina, Frank Siebler, and Viki Tendayi, “Rape Myth Acceptance: Cognitive, Affective and Behavioural Effects of Beliefs that Blame the Victim and Exonerate the Perpetrator,” in Rape: Challenging Contemporary Thinking, ed. Miranda Horvath and Jennifer Brown (Cullompton, U.K.: Willan Publishing, 2009), 18; Ana Pauna and Zbigniew Pleszewski, “Clinical and Methodological Issues in the Research on the Rape Myth,” World Academy of Science, Engineering and Technology 6, no. 6 (2012): 1202. 36. Kimberly Lonsway and Louise Fitzgerald, “Rape Myths: In Review,” Psychology of Women Quarterly 18, no. 2 (June 1994): 136; Liz Kelly, Jennifer Temkin, and Sue Griffiths, Section 41: An Evaluation of New Legislation Limiting Sexual History Evidence in Rape Trials (London: Home Office, 2006), 2–­3; Temkin and Krahé, Sexual Assault and the Justice Gap, 38, 42; Friederike Eyssel and Gerd Bohner, “Modern Rape Myths: The Acceptance of Modern Myths about Sexual Aggression (AMMSA) Scale,” in The Psychology of Modern Prejudice, ed. Melanie Morrison and Todd Morrison (Hauppauge, N.Y.: Nova Science Publishers, 2008), 263. 37. See Heiker Gerger, Hanna Kley, Gerd Bohner, and Frank Siebler, “The Acceptance of Modern Myths about Sexual Aggression Scale: Development and Validation in German and English,” Aggressive Behavior 33, no. 5 (September/October 2007): 423. 38. Conaghan and Russell, “Rape Myths, Law, and Feminist Research,” 34. 39. See, e.g., Sharon Lamb, ed., New Versions of Victims: Feminists Struggle with the Concept (New York: New York University Press, 1999). 40. David Robert Grimes, “Six Stubborn Myths about Cancer,” Guardian, August 30, 2013, https://www.theguardian.com/science/2013/aug/30/six-stubborn-myths​ -cancer. 41. Gerger et al., “The Acceptance of Modern Myths about Sexual Aggression Scale,” 423. 42. Recent research that relies on Gerger et al.’s scale includes Temkin and Krahé, Sexual Assault and the Justice Gap; Louise Ellison and Vanessa Munro, “A Stranger in the Bushes, or an Elephant in the Room? Critical Reflections upon



The Charybdis of Rape Myth Discourse

79

Received Rape Myth Wisdom in the Context of a Mock Jury Study,” New Criminal Law Review 13, no. 4 (Fall 2010): 782; Pauna and Pleszewski, “Clinical and Methodological Issues in the Research on the Rape Myth.” But for recent use of other measures, see, e.g., Irina Anderson and Helena Bissell, “Blame and Fault Attributions in Sexual Violence: Are These Distinct?,” Journal of Aggression, Conflict and Peace Research 3, no. 4 (2011): 222–­29; Michelle Davies, Jennifer Gilston, and Paul Rogers, “Examining the Relationship between Male Rape Myth Acceptance, ­Female Rape Myth Acceptance, Victim Blame, Homophobia, Gender Roles and Ambivalent Sexism,” Journal of Interpersonal Violence 27, no. 14 (September 2012): 2807–­823; Teri Aronowitz, Cheryl Ann Lambert, and Sara Davidoff, “The Role of Rape Myth Acceptance in the Social Norms Regarding Sexual Behavior among College Students,” Journal of Community Health Nursing 29, no. 3 (July–­ September 2012): 173–­82. 43. Conaghan and Russell, “Rape Myths, Law, and Feminist Research,” 34. 44. “Should Ched Evans Be Allowed to Play Again,” YouTube video, 0:33, from a guest intervention by Judy Finnigan in Loose Women, posted by “Loose Women,” April 21, 2015, https://www.youtube.com/watch?v=PrWRAmMqNgg. I have transcribed the quotation from the YouTube video; accordingly, the emphasis I have added is based on my own analysis of Finnigan’s tone of voice. 45. Alasdair Glennie, “Judy Finnigan Forced into Humiliating Apology on Her First Day on Loose Women after Excusing Rape by Footballer Because It ‘Wasn’t Violent and the Victim Was Drunk,’” Daily Mail, October 13, 2014, http://www​ ­.dailymail.co.uk/news/article-2790939/outrage-judy-finnigan-says-rapist-foot​ baller-ched-evans-allowed-rejoin-club-rape-wasn-t-violent-girl-drunk.html. 46. Mark Jefferies, “Judy Finnigan Spared Reprimand after Sparking Rape Row with Controversial Ched Evans Comments on Loose Women,” Daily Mirror, February 2, 2015, https://www.mirror.co.uk/3am/celebrity-news/judy-finnigan​ -spared​-reprimand-after-5093196. 47. Glennie, “Judy Finnigan Forced into Humiliating Apology.” 48. Ibid. 49. Rob Leigh, “Judy Finnigan Explains Loose Women Rape Row Comments: ‘I Did Not Defend Rapist, This Was a Discussion about Justice System,” Daily Record, October 15, 2014, https://www.dailyrecord.co.uk/entertainment/tv-radio/judy​ -finnigan-explains-loose-women-4441007. 50. Hannah Ellis-­Petersen, “Judy Finnigan Apologises for Rape Comments about Ched Evans Case,” Guardian, October 13, 2014, https://www.theguardian.com/me​ dia/2014/oct/13/judy-finnigan-apologies-rape-comments-ched-evans-football. 51. Jefferies, “Judy Finnigan Spared Reprimand.” 52. Ibid. 53. Glennie, “Judy Finnigan Forced into Humiliating Apology.” 54. Ibid. 55. Leigh, “Judy Finnigan Explains Loose Women Rape Row Comments.” 56. Halley, “Where in the Legal Order Have Feminists Gained Inclusion?” 57. Jefferies, “Judy Finnigan Spared Reprimand.” 58. Ellis-­Petersen, “Judy Finnigan Apologises.” 59. See Yemshaw v. Hounslow London Borough Council [2011] UKSC 3.

80

Helen Reece

60. See R v. Donovan [1934] 2 KB 498. 61. See Helen Reece, “Feminist Anti-­Violence Discourse as Regulation,” in Regulating Autonomy: Sex, Reproduction and Family, ed. Shelley Day Sclater, Fatemeh Ebtehaj, Emily Jackson, and Martin Richards (Oxford: Hart Publishing, 2009). 62. Judy Finnigan, “EXCLUSIVE: ‘I Did NOT Defend Rapist’ Judy Finnigan Speaks Openly on Rape Debate,” Express, October 15, 2014, https://www.express​ .co.uk/news/uk/522794/Judy-Finnigan-Ched-Evan-rape-debate-Loose-Women. 63. Interestingly, Judy Finnigan defended her comments herself by arguing that they were a factually accurate statement, not an opinion. Ibid. 64. Kelly, “Contradictions and Paradoxes,” 274. 65. See Halley, Split Decisions, 345–­46. 66. See Mick Hume, Trigger Warning: Is the Fear of Being Offensive Killing Free Speech? (London: William Collins, 2015), ch. 8. 67. Frank Furedi, On Tolerance: A Defence of Moral Independence (London: Bloomsbury, 2011), 174. 68. Reece, “Rape Myths.” 69. Nazir Afzal, Barbara Hewson, Helen Reece, and Jennifer Temkin, “Is Rape Different?,” London School of Economics, Department of Law “Debating Law” Series, October 30, 2013, podcast available at https://soundcloud.com/lsepodcasts/is-rape​ -different. See also Reece, “Rape Myths,” 468–­71. 70. See http://journals.kent.ac.uk /index.php/feministsatlaw/about /journal​ Sponsorship. 71. The Editors, “A Response to the LSE Event ‘Is Rape Different?,’” feminists@law 3, no. 2 (2013): 1–­4. 72. Ibid., 1. 73. Ibid., 3. 74. Ibid. 75. Ibid. 76. Ibid. 77. Ibid., 4. 78. Ibid., 1. 79. Meat Loaf, “Life Is a Lemon and I Want My Money Back,” Bat Out of Hell II (Virgin Records, 1993). 80. See Conaghan and Russell, “Rape Myths, Law, and Feminist Research,” 34. 81. See https://www.cps.gov.uk/legal-guidance/rape-and-sexual-offences. 82. Duncan Kennedy, “Sexual Abuse, Sexy Dressing and the Eroticization of Domination,” New England Law Review 26, no. 4 (Summer 1992): 1356. 83. Ibid., 1356–­57. 84. Philip Rumney, “The Review of Sex Offences and Rape Law Reform: Another False Dawn?,” Modern Law Review 64, no. 6 (November 2001): 898. 85. Cathy Young, “Flawed Narratives, Perfect Victims, and the Columbia Rape Allegations,” Real Clear Politics, February 5, 2015, https://www.realclearpolitics.com​ ­/articles/2015/02/05/flawed_narratives_perfect_victims_and_the_columbia_rape​ _allegations_125509.html. 86. See Philip Rumney, “False Allegations of Rape,” Cambridge Law Journal 65, no. 1 (March 2006): 125–­58.



The Charybdis of Rape Myth Discourse

81

87. Fiona Elvines, “We Must Tackle the Reality of Rape and Dispel the Myths,” Guardian, October 17, 2014, https://www.theguardian.com/commentisfree/2014​ ­/oct/17/tackle-reality-rape-dispel-myths. 88. Radhika Sanghani, “Judy Finnigan Row: 7 Rape Myths Which Need Busting. Badly,” Telegraph, October 14, 2014, https://www.telegraph.co.uk/women/womens​ -life/11160859/Judy-Finnigan-Loose-Women-rape-row-7-rape-myths-which-need​ -busting.-Badly.html. 89. See Reece, “Rape Myths,” 458. 90. Sarah Vine, “Judy’s Right. Some Rapes ARE Worse than Others,” Daily Mail, October 15, 2014, http://www.dailymail.co.uk/debate/article-2793302/sarah-vine​ -judy-s-right-rapes-worse-others.html. 91. Ali Wilkin, “Why @SarahVine Is Wrong about Rape & Saying So Is Not ‘Monstering,’” Every Day Victim Blaming, October 15, 2014, http://everydayvictimblam​ ing.com/media-complaints/why-sarahvine-is-wrong-about-rape-saying-so-is-not​ -monstering/. 92. Reece, “Rape Myths,” 469–­70. 93. Temkin and Krahé, Sexual Assault and the Justice Gap, 79. For use of this measure, see also Steffen Bieneck and Barbara Krahé, “Blaming the Victim and Exonerating the Perpetrator in Cases of Rape and Robbery: Is There a Double Standard?,” Journal of Interpersonal Violence 26, no. 9 (June 2011): 1789. 94. Jo Lovett and Miranda Horvath, “Alcohol and Drugs in Rape and Sexual Assault,” in Horvath and Brown, Rape: Challenging Contemporary Thinking, 152. 95. Betsy Stanko, Louise Ellison, Martin Hewitt, and Harriet Wistrich, The ­Policing and Prosecution of Rape: What Do We Know, and How Should Our Knowledge Shape Policy and Practice?, lecture, London School of Economics, Department of Law, Gender Institute and Mannhein Centre for Criminology, March 11, 2014, http://www.lse.ac.uk/lse-player?id=2361. 96. Ed Pilkington, “SlutWalking Gets Rolling after Cop’s Loose Talk about Provocative Clothing,” Guardian, May 6, 2011, https://www.theguardian.com/world​ /2011/may/06/slutwalking-policeman-talk-clothing. 97. Kennedy, “Sexual Abuse, Sexy Dressing and the Eroticization of Domination.” 98. See, e.g., Jessica Valenti, “SlutWalks and the Future of Feminism,” Washington Post, June 3, 2011, https://www.washingtonpost.com/opinions/slutwalks-and​ -the-future-of-feminism/2011/06/01/AGjB9LIH_story.html?noredirect=on&utm​ _term=.4657c8c2d0a7. 99. Pilkington, “SlutWalking Gets Rolling.” 100. Barbara Krahé, Steffen Bieneck, and Renate Scheinberger-­Olwig, “The Role of Sexual Scripts in Sexual Aggression and Victimization,” Archives of Sexual ­Behavior 36, no. 5 (October 2007): 687–­701. 101. Ibid., 699. 102. Ibid., 700. 103. Ibid. 104. Ibid. 105. Halley, “Where in the Legal Order Have Feminists Gained Inclusion?” 106. David Gurnham, “Victim-­Blame as a Symptom of Rape Myth Acceptance? Another Look at How Young People in England Understand Sexual Consent,” Legal Studies, 36, no. 2 (2016): 14–­16.

82

Helen Reece

107. Ibid., 14–­16. 108. Ibid., 14. 109. Ibid. 110. Ibid., 15. 111. Ibid., 14. 112. Ibid., 16. 113. Ibid., 15. 114. Ibid., 14, 15. 115. Reece, “Rape Myths,” 466. 116. Ibid., 462–­65. 117. Ibid., 465. 118. Sexual Offences Act 2003, §74. 119. Finch and Munro, “Breaking Boundaries?,” 304; Cowan, “‘Freedom and Capacity to Make a Choice,’” 62. 120. Charlene Muehlenhard and Lisa Hollabaugh, “Do Women Sometimes Say No When They Mean Yes? The Prevalence and Correlates of Women’s Token Resistance to Sex,” Journal of Personality and Social Psychology 54, no. 5 (May 1988): 872–­79; Celia Kitzinger and Hannah Frith, “Just Say No? The Use of Conversation Analysis in Developing a Feminist Perspective on Sexual Refusal,” Discourse Society 10, no. 3 (July 1999): 310; Lynne Phillips, Flirting with Danger: Young Women’s Reflections on Sexuality and Domination (New York: New York University Press, 2000). See Reece, “Rape Myths,” 462–­64. 121. See Kennedy, “Sexual Abuse, Sexy Dressing and the Eroticization of Domination,” 1337. 122. See Reece, “Rape Myths,” 466. 123. See Kennedy, “Sexual Abuse, Sexy Dressing and the Eroticization of Domination,” 1338–­339. 124. See further Kathleen Franke, “Theorizing Yes: An Essay on Feminism, Law, and Desire,” Columbia Law Review 101, no. 1 (January 2001): 207; Halley, Split Decisions, 302.

CHAPTER 4

Governance Feminism in New York’s Human Trafficking Intervention Courts AMY J. COHEN AND AYA GRUBER

In the fall of 2013, New York State’s highest judge, Chief Judge Jonathan Lippman, announced a “revolutionary” statewide initiative to create and implement specialized Human Trafficking Intervention Courts (HTICs).1 The HTICs, according to Judge Lippman, would help “eradicate the epidemic of human trafficking” by undertaking to “identify trafficking victims, refer them to services, and restore them to law-­abiding lives” as well as by “investigating and bringing charges against the traffickers . . . [and] those who pay for sex.” 2 In practice, the HTICs are prostitution diversion courts in which (overwhelmingly female) defendants are prosecuted for prostitution-­related offenses and then offered services in lieu of more traditional criminal justice sentences—­often, but by no means always, resulting in noncriminal dispositions. But, as Lippman’s quotation suggests, the HTICs are not simply renamed misdemeanor courts. Until very recently, New York State courts did not understand victimization as an important component of prostitution, even in earlier diversionary programs. In this sense, the HTICs represent a radical reconceptualization of prostitution cases within the American criminal justice system, a shift from prostitution crimes as “disposable,” low-­priority, quality-­of-­life offenses to important fronts in the war on human trafficking, and from defendants as responsible agents charged with violating criminal law to defendants as coerced victims (yet still charged with violating criminal law). Court procedure includes special judicial training on sex trafficking, the participation of social workers in judicial decision-­making, 83

84

Amy J. Cohen and Aya Gruber

and mandates for trauma-­informed counseling aimed at helping defendants heal from the effects of PTSD and other trauma-­related disorders. This transformation of the legal response to prostitution reflects an extensive effort by feminists—­our chapter tells the story of how they accomplished this feat. Feminists with a range of views about commercial sex participated in the creation of the HTICs. Sex worker rights advocates, who argue for the legalization and regulation of commercial sex as a form of labor, saw in the courts a potential means of advancing harm reduction through decarceration. Feminist criminal defense attorneys recognized an opportunity to transform particularly stigmatizing and punitive practices of criminal prosecution, which in the case of prostitution are borne disproportionately by women (regardless of any particular feminist view on prostitution legalization). The feminist position that most successfully infiltrated the court system, however, was abolitionist—­that is, the idea that all prostitution is coerced and should be abolished. Proponents of this view typically advocate for the decriminalization of selling sex alongside the robust prosecution of trafficking and buying it. In the case of the HTICs, however, prostitution abolitionist feminists helped to create a more complex regime—­one that involves the continued arrest and prosecution of sellers of sex coupled with what some abolitionists describe as de facto decriminalization from within the criminal court system. The HTICs are accordingly an example of Governance Feminism: the incorporation of feminist ideas and ambitions—­here multiple, complex, and often competing ones—­w ithin “state, state-­like, and state-­affiliated” institutions.3 We begin by tracing how feminists transformed the treatment of prostitution defendants from within the New York misdemeanor court system by reframing prostitution—­ understood as an illicit economic exchange and public order offense in the 1990s—­as domestic violence in the first decade of the 2000s and human trafficking toward the end of the decade. We then describe how these new frames influenced court practices and the potential to achieve particular feminist goals. We base this study on multiple sources: detailed interviews with judges, prosecutors, defense attorneys, and social workers; court observations conducted in the four pilot New York City HTICs (Midtown, Bronx, Queens, and Brooklyn) in June 2014; and an extensive review of the legislative debates at the state and city



Governance Feminism in New York’s Courts

85

level on how to address prostitution and trafficking in New York. This chapter, as well as articles published elsewhere, collects our observations of these new courts: how the reformers understood them, how they fit into existing ideological capacities, and how they changed the social meaning of prostitution for advocates, social workers, judges, and court administrators.4 Like all governance, feminist governance involves compromises shaped by structural, political, and institutional constraints. In particular, feminists involved in the HTICs worked within a distinct political environment that made it far easier to advocate for prostitution reform from within the criminal justice system than outside of it. To that end, feminists achieved significant revisions in the prosecution and sentencing of people charged with selling sex but not a political decision on whether and how to change their legal status from offender to victim or legal worker and, with such a political decision, the reform of policing. Likewise, feminists achieved a modest increase in funding for service provision for prostitution defendants reconceived as victims, but services that are administered, hand in glove, through the penal system. We conclude with an example of Governance Feminism that navigates these compromises and political constraints in a way we commend—­namely, the advocacy of Kate Mogulescu, the founder and director of the Legal Aid Society’s Exploitation Intervention Project, who oversees the legal representation of nearly all indigent defendants charged with prostitution in New York City courts. In describing her reflections working with the HTICs, we explore Governance Feminism not only as a set of reformist practices but also as an analytical perspective—­that is, as a call to feminists to take responsibility for and justify, if we can, concessions made to rival ideas that simplify, dilute, and recruit activist aspirations to very different projects and ends, particularly as activism becomes governance.

Before Governance Feminism: Community Courts in the 1990s In 1993, Rudolph Giuliani became mayor of New York City, spearheading New York’s famous crackdown on “quality of life” crimes—­that is,  offenses considered categories of moral and social disorder that

86

Amy J. Cohen and Aya Gruber

created conditions for more serious crime.5 New York City’s preoccupation with “broken windows” policing led to an uptick in court processing of minor but publicly visible crimes, such as graffiti, loitering, and turnstile jumping. In turn, the criminal justice system in New York City witnessed what Issa Kohler-­Hausmann has called the rise of mass misdemeanors—­that is, an increasing number of arrests and criminal charges for low-­level offenses often processed without criminal convictions or extended periods of incarceration.6 Prostitution was a case in point. Defendants were repeatedly arrested and charged with loitering for the purposes of prostitution or with prostitution itself (charges that can result in either a violation, an offense with a maximum sentence of fifteen days and no criminal record, or a misdemeanor, which means a criminal conviction and a maximum penalty of ninety days in jail). Many were convicted of one of these two charges and sentenced to “time served” (typically the twenty-­four to forty-­eight hours they spent detained awaiting arraignment).7 As a Queens criminal court judge told us, “everybody [was] complicit in this idea that [prostitution cases] are the go-­away cases, that you just resolve them as soon as you can and make them disappear.”8 Or as a Brooklyn public defender put it: “You have these cases that used to just be pumped through the machinery in arraignments . . . [and clients would] plead out to a couple days in jail.”9 For many of our interlocutors, the “disposable” nature of these cases represented a deeply troubling state of affairs—­characterized by inattention to root causes, wasted judicial resources, and frustrated court personnel. In the 1990s, court reformers experimented with a piecemeal solution that prefigures the HTICs. They developed select “community courts” designed not just to punish public order offenders but to help “solve” the problems plaguing urban neighborhoods by offering offenders social services and simultaneously sentencing them to various forms of community restitution. The first community court was launched in 1993 by the Center for Court Innovation (CCI) in the business district of Midtown Manhattan.10 It targeted “low-­level offenses, such as shoplifting, small-­time drug dealing, and, of course, prostitution.”11 When it came to prostitution, court reformers involved in the Midtown Community Court in the 1990s described defendants as self-­ interested, if also drug-­addicted, actors engaging in risky economic exchange. They described commercial sex as a market appropriately



Governance Feminism in New York’s Courts

87

made illegal because it eroded the stability and economic viability of urban neighborhoods by visibly manifesting social disorder, paving the way for other kinds of crime and intimidating law-­abiding citizens. These descriptions reflected and reinforced a clear victim/offender logic. Put simply, communities were victims and prostitutes offenders. Consider, for example, CCI Director of Communications Robert Victor Wolf’s sympathy toward public-­order policing in his 2001 description of Midtown Community Court’s “assault on street prostitution”: Not too long ago, Times Square and its surrounding neighborhoods were synonymous with porn theaters, adult book stores, and prostitutes on well-­trafficked corners. In parts of nearby Clinton and Chelsea, women in high heels and almost nothing else could be seen during morning rush hour brazenly flashing potential customers in passing cars. While many people think of prostitution as a victimless crime, for the people who lived and worked in the area it was anything but. Neighborhood residents were afraid to let their children play outside not only because of the scantily clad women and their barely concealed sexual activity, but also because of the crack vials, used needles and discarded condoms they left behind.12

To restore communities victimized by “scantily clad women and their barely concealed sexual activity,” community courts instituted what they called “meaningful sanctions.”13 First, the Midtown Community Court sentenced offenders to often long hours of community service and required them to wear blue vests bearing the court’s name in order to encourage accountability and demonstrate it publicly.14 The court also scheduled the community service at night to make it harder for women “to walk the streets.”15 The court reserved incarceration for the most recalcitrant offenders, but such sentences were often significantly longer than those typically issued by regular criminal courts.16 In addition, the court mandated services such as health education that “focus[ed] on practical health matters, like sexually transmitted diseases,” counseling sessions that offered instruction in “emotional health, living skills . . . and goal setting,” as well as drug treatment in some cases.17 The court reformers of the 1990s commended the demanding nature of these sanctions.18 Wolf, for example, noted that many prostitutes

88

Amy J. Cohen and Aya Gruber

would prefer a short jail sentence to the “hassle” of participating in educational classes and performing community restitution.19 But these alternative forms of social control, he argued, made the Midtown Community Court far more effective than traditional criminal courts in encouraging women to “quit the business.”20 Anthropologist Victoria Malkin reports similar aspirations of a second community court, the Red Hook Community Justice Center (RHCJC) in Brooklyn. Drawing on research conducted in 2000–­2001, she writes: The court often announced its efforts to control prostitution, informing local residents how it had successfully managed to discourage this in certain hot spots through the imposition of more arduous mandates, provoking many prostitutes to move on to other bars in other neighborhoods, rather than risk having to participate in health groups and community services crews at the RHCJC and forfeit their daily wage.21

Community courts were thus “service-­based, but they were not at all about servicing [victims of] trafficking or violence against women,” explained a former CCI employee.22 Rather, they reflected a broader reformist effort underlying problem-­solving courts generally—­namely, to create alternatives to traditional forms of adjudication and incarceration that had failed to discourage low-­level crimes. Indeed, it was precisely because prostitution was then defined as a problem of community disorder and disruption—­spurred by a market for “the world’s oldest profession”—­that the overarching measure of success for community courts was the extent to which they reduced the external visibility and collateral effects of commercial sex. Wolf put the point bluntly: “In the end,” he writes, “it’s impossible to know for certain how many prostitutes have been persuaded to quit the business altogether. But from the perspective of stakeholders in the Midtown community, it almost doesn’t matter. What does matter is that visible signs of prostitution in the neighborhood have been dramatically reduced.”23 At the same time, Midtown Community Court officials expressed concern about a “new breed” of recalcitrant women whose profit and thrill-­seeking desires defied reform. As CCI staff member and court coordinator Julius Lang explained in 2001, these women were likely to say, “I came here for the bright lights and glamour and a couple of arrests haven’t worn me down. There’s still a pot of gold here



Governance Feminism in New York’s Courts

89

and I’m going to find it.”24 Whether this analysis is an accurate description of why prostitution persisted in Manhattan (or elsewhere) is not our interest. The point we wish to stress instead is that Lang’s diagnosis is virtually unutterable within the walls of the HTICs. Today, it is those engaging in prostitution themselves—­not “communities”—­who are the primary victims of commercial sex. The following sections explain how and why this came to be.

Feminism and the Making of the HTICs By the 2013 launch of the HTICs, prostitution-­abolitionist feminists had redefined prostitution as sex trafficking. They described sex trafficking as commercial sex involving coercion or exploitation, regardless of movement or transportation, and the most radical abolitionists regarded sex trafficking as commercial sex itself. Today, this conflation of prostitution and trafficking appears obvious and necessary to numerous New York State officials involved in the HTICs. But it represents a significant shift in policy and law. Consider a brief example. In 2006, the state of New York held a public hearing on proposed 2007 state anti-­trafficking legislation. Testimony focused on the influx of people smuggled from other countries. As state senator Marty Golden put it: “We are one of the top ports in the country. We’re a top five here in New York City and New York State, being a border to Canada, being near the Kennedy, LaGuardia, and Newark Airports, the boats and different cruise lines that come in to this city.”25 Legislators and experts devoted scant attention to prostitution other than as a site where investigators were likely to identify trafficking victims.26 Indeed, in a City Council hearing on the anti-­ trafficking legislation that same year, lawmakers deeply supportive of new anti-­trafficking measures were careful to distinguish sex trafficking from prostitution. For example, the chairperson of the Committee on Women’s Issues (hosting the hearings) Helen Sears asserted that “there needs to be a shifting of gears in separating human trafficking and prostitution . . . they must be separated as to exactly how they get treated, what services are there for those that are in human trafficking, and for those that are in prostitution.”27 Or, for another example, City Council member Letitia James put the following question to the deputy chief of police tasked with overseeing the vice enforcement

90

Amy J. Cohen and Aya Gruber

division: “you focus[] primarily on prostitution; is that your primary means of addressing the issue of human trafficking, which is separate and apart from the crime of prostitution?”28 This distinction between prostitution and trafficking would not hold. By the time the HTICs opened in 2013, numerous city and state lawmakers and advocates routinely described all people in prostitution as presumptive victims of sex trafficking. As the then chief of policy and planning for New York State’s Unified Court System Judge Judy Kluger explained, “by and large we work under the assumption that anyone who’s charged with [prostitution] is trafficked in some way.”29 Compared with the community courts of the 1990s with their quality-­of-­life / public-­order bent to criminalizing and combating prostitution, the HTICs thus represent “a completely different approach,” as the presiding judge of the Queens County HTIC Toko Serita explained. These courts cast defendants “as either victims of human trafficking or as a group that is at high risk for trafficking.”30 In the latter part of the first decade of the 2000s, this “sea change” in law and policy was largely the work of New York–­based feminists, most of whom remarkably had devoted their careers to fighting not international trafficking rings but rather ordinary domestic violence.31 As state assemblywoman Amy Paulin put it, “the reason I have become the author of [the Trafficking Victims Protection and Justice Act]32 and one of its champions is because of my work working with the advocates of domestic violence.”33 Indeed, many advocates state that their experience with victims of domestic violence and intimate partner dynamics of power and control is precisely what enabled them to recognize prostitution as sex trafficking in ordinary neighborhoods in New York. For example, when Chief Judge Lippman described the statewide rollout of the HTICs, he credited Queens County judge Fernando Camacho with pioneering its victim-­based approach. “As [Judge Camacho] had previously presided over a Domestic Violence Court,” Lippman explained, “he perceived that the majority of the young women appearing before him were victims of exploitation and physical and sexual abuse, not hardened criminals.”34 In other words, advocates, judges, and lawmakers conceptualized commercial sex as a consequence and practice of domestic violence, particularly intimate partner violence. As interest in human trafficking exploded in public discourse, they drew a line from prostitution to sex trafficking via the



Governance Feminism in New York’s Courts

91

language of domestic violence—­so that anyone who experienced domestic or intimate partner coercion to sell sex was considered trafficked. As such, transportation became irrelevant; in Judge Kluger’s words, “you can be trafficked from Brooklyn to Manhattan.”35 CCI played a crucial role in formalizing and institutionalizing this new frame. In 2007, a policy change meant that all prostitution arrests in Manhattan were arraigned at the Midtown Community Court, where social services were provided on site.36 Prostitution defendants were not yet considered sex trafficking victims, but a new crop of CCI personnel helped make that shift soon forthcoming. In 2008, Courtney Bryan joined CCI as the director of Criminal Justice Operations. Having previously defended battered women charged with crimes, she aimed to create court programs more sensitive to the “histor[ies] of abuse” experienced by female defendants in general. That is, she wanted to “find[] victims of domestic violence in our criminal courts” who appeared on the record as simply “defendants charged with crimes.”37 (Bryan’s own formative experience was working with a domestic violence victim charged with gambling offenses.) Her colleague Robyn Mazur, also a former domestic violence victim advocate, similarly explained that most advocates “were still deep in traditional domestic violence cases,” that is, cases in which the sole issue was protecting domestic violence victims from abusers, not absolving victims of responsibility for crimes they may have committed under duress from their abusers (indeed, some domestic violence organizations declined social services to victims with criminal records).38 Bryan and Mazur recognized that women subjected to violence could, and often did, commit crimes themselves, and they were interested in helping that population. Focusing on prostitution defendants was a natural way to find such defendants. Mazur explained, “Back in House of Ruth [a domestic violence organization] when trafficking was not on my radar I realized how prostitution intersected with domestic violence.” In community courts, she continued, “prostitution is the critical mass of cases where [experiencing] violence overlaps with being a female defendant.”39 In other words, Bryan and Mazur argued that the court system should reconfigure its understanding of those charged with prostitution offenses as a special category of defendants coerced (primarily by intimate partners) to participate in their crime.

92

Amy J. Cohen and Aya Gruber

In 2010, Bryan and Mazur received a grant from the Department of Justice’s Office on Violence against Women (OVW). They used it to provide domestic violence and sexual assault services to women involved in the criminal justice system, concentrating on women arrested for prostitution at the Midtown Community Court and elsewhere in New York City, “because at that time the judicial response to prostitution was not centered around the recognition that many of the [defendants] . . . have histories of and may be current[ly] [subjected to] gender-­based violence.” 40 At this time, they articulated their arguments primarily in the language of domestic violence. In Bryan’s words, in our OVW grant our emphasis was on victims of domestic violence, sexual assault, stalking. We talked about women coming through our criminal courts charged with prostitution related offenses as very likely also victims of violence, and described the research around the prevalence of domestic violence and sexual assault in prostitution. We referenced trafficking as another example of violence.41

They used the grant funding in part to hire a social worker, Miriam Goodman, who partnered with STEPS to End Family Violence—­an organization that advocates for incarcerated victims of domestic violence—­to redesign the social service component of court treatment mandates to help defendants heal from trauma.42 Bryan, Mazur, Goodman, and their collaborators thus successfully shifted the description of prostitution in the New York court system from a petty crime to one signifying victimization of domestic and gender-­based “violence at large.” 43 For them, prostitution, although driven in part by poverty, was not primarily understood as a form of market labor coerced simply by material need (like many kinds of market exchange). Nor was it yet uniformly defined as human trafficking—­ that is, nonvolitional or forced labor. Rather, it was an example of intimate partner, gender-­and family-­based violence: women (and some men) prostituted themselves to secure the love, care, and protection of, and simultaneously safety from, family members—­boyfriends, husbands, father figures, mothers-­in-­law—­who were in some way potential sources of domestic violence. In this way, CCI’s emerging views of prostitution overlapped with arguments made by the abolitionist group Sanctuary for Families, which also works closely with the New



Governance Feminism in New York’s Courts

93

York Court system. Members repeatedly argued that “the ways in which pimps exercise power and control over prostituted victims are often identical to the ways in which batterers control their intimate partners.” 44 That is, they described prostitution and domestic violence as shaped by indistinguishable, even causal, logics. In both cases, they explained, women stay in abusive situations because of affective ties and forms of control, and abused women, in turn, become vulnerable to prostitution as an extreme form of intimate partner abuse and violence.45 Court reformers moreover used capacious understandings of the effects of domestic violence to attribute commercial sex not only to the direct coercion of an intimate abuser but also to choices inexorably shaped by a history of gender and/or family violence. A 2012 CCI study reported, for example, that “the Midtown Community Court has found that over 80 percent of the women arrested for prostitution in Manhattan report some form of past or present victimization, including childhood sexual abuse, sexual and/or physical assault, or domestic violence.” 46 For CCI staff and their allies, past as much as present violence justified differential treatment for individuals charged with prostitution in the New York court system. As Mazur explained, CCI was applying a battered women ideology to a broader range of cases “without allegations of abuse but where we know are often high rates of abuse.” “I kind of have a presumption of abuse,” she said flatly. In cases of prostitution, “we feel like it’s a hidden victim.” 47 From this perspective, the absence of a pimp or exploiter at the time of arrest does not change the analysis. Prostitution defendants’ past experiences of family dysfunction and domestic and sexual violence make their engagement in commercial sex coerced, creating the need for services to address trauma. When we asked how prostitution as a category of domestic violence was further transformed, rather dramatically, into sex trafficking, both Bryan and Mazur suggested that their work overlapped serendipitously with growing national interest in trafficking until, “oh my gosh,” in Bryan’s words, “what if these people could actually be victims [of trafficking], that wasn’t such a hard thing [for reformers and policymakers] to grasp.” 48 But in fact, it was precisely their reconfiguration of prostitution as family violence that made it possible for New York feminists in positions of state power to capitalize on the growing political

94

Amy J. Cohen and Aya Gruber

will to combat sex trafficking. These feminists configured trafficking—­ just like prostitution—­as domestic violence. Here, for example, is how Judge Kluger explains the connection: “Over the past decade, we have established more than 80 courts across the state that focus on domestic violence cases. As our knowledge and understanding of domestic violence has grown, we have come to recognize that human sex trafficking is possibly its most extreme form.” 49 Sex trafficking is an extreme form of domestic violence, Kluger elaborates, because trafficking victims are often lured into prostitution through false promises of love, stability and financial security. Similar to victims of other forms of domestic violence, trafficking victims often experience the same power and control, manipulation and cyclical violence that leads them to believe that their abusers love, protect and provide to them.50

By describing both prostitution and sex trafficking as experiences of domestic violence, Judge Kluger and others were also able to define sex trafficking as a crime that could be accomplished through intimate emotional and psychological manipulation, not simply brute physical force. In a telling example, prostitution abolitionist feminists lobbied for the 2015 Trafficking Victims Protection and Justice Act, which now makes sex trafficking automatically a violent (rather than nonviolent) felony even when a trafficker, for example, makes only “false statements, misstatements, or omissions to induce or maintain the person being patronized to engage in or continue to engage in prostitution activity.”51 (Labor trafficking, by contrast, becomes a violent felony when physical injury or property damage occurs.52) This new legislation reflects the abolitionist-­feminist position that prostitution in particular reflects the violence of affective and domestic forms of influence and control (and, yes, also the violence of sex). Court reformers thus created a new feminist paradigm to understand prostitution as victimization—­one that posits a combination of emotional vulnerability, childhood and adolescent abuse and trauma, and desire for intimate family connections—­not simply or primarily market choice or even market exploitation—­in order to explain why people sell sex.53 This emphasis on family-­not-­market coercion explicitly informed the training and practice of those involved in the new courts. Miriam Goodman, for example, explained that she instructs



Governance Feminism in New York’s Courts

95

court personnel in the dynamics of “intimate partner pimps” in order to help them understand “why women don’t want to just leave . . . especially now that you have that label of trafficking.”54 Or as Mazur put it, “a light bulb goes off” for judges when social workers link domestic violence and trafficking; they realize that “it could be the husband or the father or the boyfriend.”55 The revised perspective of a seasoned Queens district attorney reflects this shift toward viewing prostitution as a function of intimate partner abuse and family dysfunction rather than an economic calculus: “I always thought of prostitution not as something you wanted to do, but something you had to do in order to earn money to survive, a financial need.” “But,” she continued, this view was not quite right. The way some of these young girls and boys are exploited is just amazing because they are vulnerable and insecure. They run away from home and are alone on the street, they find someone who gives them a place to stay, takes care of them and within a short period of time, he or she lose sight of their own self-­worth and believe they have to do this for him, their exploiter, without ever admitting or even realizing they are being exploited. It’s like, if you love me you’d do this.56

In many ways, the transformation of prostitution from illicit, risky, and harmful economic exchange to family vulnerability and violence justified the transformation of prostitution diversion courts into resource-­heavy social welfare institutions. These courts require the dedication of significant social infrastructure—­specially trained judges, staff social workers, and links to numerous group and individual counseling programs—­to address what the New York criminal code defines as a very minor social infraction. A 2015 New York City budget hearing, for example, featured court officials lobbying for appropriations for housing, health care, and job training to administer through HTIC programming.57 What explains this activism on behalf of defendants offered diversion from what is at most a mere misdemeanor conviction? Likely, it is not an effort to encourage the state to mitigate the effects of uncontrolled and exploitative labor markets or to regulate potentially unfair economic exchanges. In the 1990s, broken windows criminology rationalized the community courts formed in that decade. At that time, prostitution, like

96

Amy J. Cohen and Aya Gruber

other misdemeanor public-­order offenses, was considered a gateway crime that eroded community safety and stability and therefore required intensive public efforts to combat it. Today, we have a different, explicitly feminist, view of state responsibility regarding prostitution—­ namely, the state’s duty to intervene on behalf of vulnerable individuals when they experience private violence within their families. In other words, part of what has made these particular feminist actors powerful within the New York State court system are the ways in which their aspirations map onto broader political trends. Feminist advocates of the HTICs removed prostitution from a liberal market consent-­based paradigm where dominant state welfare ideas are otherwise minimalist. And they placed it squarely within a family/domestic violence paradigm, which feminists had already established as a necessary site of government intervention. That is, feminists worked within our contemporary neoliberal regime where the state largely refrains from addressing vulnerabilities created by market conditions but has license to intervene robustly on behalf of those vulnerable to family violence and coercion, typically women and most especially children. Tellingly, in the middle of the first decade of the 2000s, the first prostitution court program in New York to adopt a defendant-­as-­v ictim-­ model addressed juvenile prostitution offenders. Fernando Camacho, the presiding judge, explained that every time I would come across a young person charged with prostitution, I would ask the same types of questions and I was getting the same answers. “How’d you get into the life?” “Well, I got into the life because I was a runaway or I was a throwaway or I ran away from home because I was getting physically or sexually abused at home and I ran away, and I was recruited by a pimp.” Camacho began to argue for more compassionate social service programs to help “these children standing there in these ridiculous looking outfits.58

When, several years later, victim-­based court programming was extended to benefit adult women, so was the idea of the child as a metaphor for adult prostitutes. Consider, for example, the oft-­repeated position of Sanctuary for Families. Their members argue that prostitutes are trafficked even when they work independently. And why? Because



Governance Feminism in New York’s Courts

97

these women likely began their careers as exploited children. As a member of Sanctuary for Families put it: Adult women in prostitution who first experience sexual exploitation as children, which we may assume to be the majority of prostituted women . . . should be recognized and protected as trafficking victims. But . . . if now there is no pimp, then who is the trafficker? . . . It is evident that sex industry buyers or Johns who prey on vulnerable women . . . should also be considered traffickers.59

From this perspective, “the majority of” adult prostitution defendants can be considered trafficked because of exploitation experienced as children, regardless of the existence of present exploitation. Norma Ramos, executive director of the Coalition against Trafficking in Women, put the point in stark terms in a New York City Council hearing on a resolution calling upon Village Voice Media to refuse “back page” ads for adult services. She beseeched lawmakers to focus on children and women, “those ex-­children, is who I call them, who will more than likely still remain in prostitution.” 60 Advocates referenced prostitution defendants’ status as ex-­children to establish the state’s responsibility to provide them with counseling, therapy, and limited forms of assistance with immigration status, job training, and housing. As far as we can discover, this justification did not produce a surge in state funding to public or private service providers disconnected from the criminal justice system. Instead, in the court reform paradigm feminists helped to create, the state cares for these women as criminal defendants. In this way, the HTICs reflect and were shaped by two broader state paradigms of today: as we have seen, family violence as an exception to the decline of state protection and public assistance based on simply economic need;61 but also criminal management as a legitimate, if not preferred, method of addressing social dysfunction—­indeed as an exception to the decline of state intervention in other areas of public administration, including the economy.62 As such, it is not surprising that feminist participants in the HTICs layered welfarist forms of state responsibility onto the criminal justice system. Today, anyone in New York engaged in commercial sex (volitional or coerced) remains subject to penal control. This contemporary form of penal control, however, administers not simply arrest,

98

Amy J. Cohen and Aya Gruber

prosecution, and potentially incarceration but also social services—­ specifically to defendants understood as victims of gender-­based, sexual, and family violence. In the following section, we explore how different feminist actors have attempted to advance the court’s dual prosecutorial and (highly particular) welfarist missions while managing the contradictions between them.

The Human Trafficking Intervention Courts In most HTICs, defendants charged with a prostitution offense without any previous history are supposed to receive an offer of an adjournment in contemplation of dismissal, an “ACD,” in exchange for participation in a therapeutic program. If the defendants complete the mandated program and are not rearrested within a period of time, typically six months, then the charge is supposed to be dismissed and all records of it sealed. Chief Judge Lippman described the HTICs generally as “a template for the rest of the country in dealing with the societal impact of human trafficking that ultimately ends up in our courtrooms.” 63 What we found, however, is hardly a uniform model or set of ideas but rather court practices full of competing interests and contradictions. A detailed analysis of this complex practice is the subject of another publication.64 Here we wish simply to highlight one overarching, and highly contested, dynamic. On the one hand, as we have seen, addressing prostitution via court reform recasts those arrested for prostitution as victims of family violence, and thus worthy of help, rather than as criminals warranting punishment. On the other hand, these courts simultaneously advance a broader law-­and-­order project, namely, increased criminal management of pimps and johns and also of sellers of sex themselves—­including, as Mogulescu has argued, periodic spikes in prostitution arrests when law enforcement is particularly motivated to appear as if doing something about sex trafficking.65 In our interviews, prosecutors and defense attorneys debated these double aims of the new court system. Consider, for example, this conversation with Hannah Freilich, a deputy bureau chief in the Bronx County District Attorney’s Office. “Prostitution,” she began, “tends to be a very pitiful crime. . . . [so] I think that if somebody can get services to get them out of this life . . . it’s appropriate to do that with the hope of preventing [prostitution] in the future.” But, for her, this



Governance Feminism in New York’s Courts

99

aspiration significantly understates the goal of the HTICs, which is “globally to eliminate the trafficking and exploitation of these women.” Freilich therefore wants court staff and defense attorneys to tie service provision for prostitution defendants to their cooperation in prosecuting traffickers—­a measure she sees as “empowering the defendants” by saying to them, “Hey can’t we get to the traffickers?” 66 This desire to recruit defendants as informants, we suggest, in part explains her office’s steadfast refusal to seal their office files on HTIC cases where a defendant has successfully completed a mandate and had the charges dismissed (they remain sealed in almost all other cases that result in dismissal). This policy change means that prior prostitution charges—­a lthough formally dismissed—­remain visible to prosecutors. For a defendant with many prior charges, jail sentences are appropriate, Freilich argues, unless the defendant “is willing to say, ‘I’ve been trafficked. This is where I’ve been trafficked.’” But if the defendant does not wish to inform, “our hands are kind of tied. I can’t say, ‘Go ahead continue this way of life without any ramifications.’” 67 To be clear, Freilich and her staff in the Bronx regularly work with service providers who insist upon maintaining client confidentiality (including the confidentiality of any information a client shares about an exploiter). Nonetheless, she considers recidivist prostitution defendants offenders (not victims) when they refuse to use the services offered to them to help prosecute their exploiters and thus properly subject to the regular mandates of criminal law. In the middle of the first decade of the 2000s, the district attorney’s office in Brooklyn created a very different service program designed specifically to obtain information from prostitution defendants. When the HTICs were created, Brooklyn prosecutors required all service mandates to be satisfied through this program. Program counselors interviewed all participants by asking, for example, What kinds of work have they done? Is it stripping? Is it in-­calls? Is it out-­calls? Is it escorting? Is it street sex work? Do they have a pimp? Have they ever had a pimp? Have they ever been forced to work? Have they ever been beaten up? Have they ever been raped? Have they ever been sexually assaulted? . . . And then what’s their living situation? Are they living with someone? A boyfriend? Are they working for the boyfriend? Who do they give their money to?68

100

Amy J. Cohen and Aya Gruber

Since the creation of the HTICs, defense attorneys have successfully lobbied for the Brooklyn HTIC to include a more a diverse and confidential range of treatment programs. They regarded the original inquisition-­like program (which was discontinued in 2015) as a symptom of a larger and deeply troubling rationalization for the new courts—­namely, the idea that the state can “catch traffickers if [it] prosecute[s] the trafficked.” 69 As Kristine Herman, strategic initiatives specialist at Brooklyn Defender Services, told us: “This has come up in many meetings, and we asked the Brooklyn district attorney’s office for any statistics that anyone arrested for prostitution has led them to a trafficker. And I’ve been told, ‘so far there are none, but we still have our hopes.’”70 Indeed in 2011, Lauren Hersh, then chief of the Sex Trafficking Unit in the Brooklyn District Attorney’s Office, told the New York City Council that “one of the things that we’re actually working toward doing is to go into the arraignment part and interview every prostitution arrest[ee]. Because we think we will get valuable information at that time.”71 This idea of prostitution defendants as active participants in state criminal law enforcement sits uneasily with the competing, and more widely publicized, justification for the courts, that those arrested for prostitution offenses are victims of trafficking in need of counseling, therapy, and support. As Mogulescu argued at a City Council hearing, “If we are saying, and it’s actually been said here this morning, that we are now to assume that anyone charged with a prostitution offense is a victim of trafficking[,] well, what are we doing in the continued prosecution in these courts? . . . Once you kind of think about it, you realize how much cognitive dissonance there really is here.”72 Some powerful abolitionist feminists have refused entirely to acknowledge this cognitive dissonance. Judge Kluger, who also refused to talk with us because she objects to Gruber’s feminist critique of the punitive aspects of domestic violence and rape law reform, has publicly praised the HTICs as “an unprecedented lifeline” for defendants—­ full stop.73 Journalist Molly Crabapple reports that Judge Kluger views the HTICs as “decriminalizing prostitution in the court system” and police officers as nonviolent.74 Public documents thus suggest that Judge Kluger understands the criminal justice system as an entirely,



Governance Feminism in New York’s Courts

101

or at least overwhelmingly, beneficial intervention in prostitution defendants’ lives. Other court actors were more forthcoming about the dilemmas the HTICs present for their own feminist or feminist-­aligned commitments. Consider our conversation with Judge Serita, who presides over the Queens HTIC and who describes herself as “someone who has been involved in women’s and social justice issues since my twenties, including issues around gender and sexual violence.” She struggles, she concedes, with women “charged with these offenses [when] I really don’t believe that [they] should be before me.” When we asked whether she therefore thought prostitution should be decriminalized, she replied that she was “not necessarily interested in that discussion only because I don’t know to what extent my personal political views really impact my ability to do my work.” This was the case for two reasons: first, judges do law, not politics. In Judge Serita’s words, “as criminal court judges, we have no control over the arrest or prosecution of individuals arrested on prostitution charges but are nevertheless bound to uphold the laws, regardless of our personal views on decriminalization.” Second, there was an urgent need to help the particular victims in her court. “Most of the individuals before me in the trafficking intervention court,” she explained, “are some of the most powerless and disadvantaged individuals due to the complicated intersections of race, class, and gender” and “are not expressing agency or self-­determination by engaging in prostitution.” For this reason, Judge Serita uses the power and authority of the criminal court to “help empower these individuals by connecting them to services so that some of their fundamental needs can begin to be addressed . . . that’s what I feel my role in this [court] part is designed to do.”75 We had a similar conversation with Judge Shari Michels in the Bronx, who defended the dismissal-­in-­exchange-­for-­services approach of the court because, she argued, the defendants in her courtroom did not voluntarily engage in commercial sex. Amy Cohen: Is that an argument for legalization or decriminalization [at least] for women? Judge Michels: I am not sure either word is the right word. I think it is more a matter of helping the women who are abandoned and abused.76

102

Amy J. Cohen and Aya Gruber

Like Judge Serita, Judge Michels prioritizes “help” over politics—­ evading both the abolitionist-­feminist position to decriminalize the woman’s activities while enhancing criminal penalties for purchasers and facilitators of commercial sex and the sex-­worker-­rights arguments for legalization, labor unionization, and market regulation. This depoliticized service-­based approach also reflects CCI’s ethos, which advocates for “alternatives” to incarceration rather than decriminalization. As Courtney Bryan, director of Criminal Justice Operations, explained, defining what prostitution “is” spurs “such a polarizing debate  .  .  . we [CCI] do not get involved in that. We’re kind of taking people at the realities that . . . they share with us.”77 Miriam Goodman, assistant director for anti-­trafficking and trauma initiatives at CCI, similarly described how debates about how to represent prostitution defendants (for example, as victims or survivors) can distract from the more pressing and material issues faced by service providers: “we’re a bunch of mostly women in social service agencies that are fighting over a very small pot of money that the government, which is mostly run by men, is giving out. . . . I’d rather sit around and talk about what can we do to get more housing for these clients.”78 We thus witnessed what we call a kind of “court reform feminism” mediating the interests of various feminist prostitution camps ­described above. A range of feminist actors, including judges, CCI staff, and social workers, purposefully converged around the benefits and opportunities enabled by depoliticization—­focusing specifically on the HTICs’ practice of offering professionalized social services to individual defendants. To that end, court reform feminists saw themselves as engaging primarily in efforts to advance the welfarist interests on which all camps converged—­doing the best they could for victims within the existing criminal justice system and in ways that enabled pragmatic, even collaborative, relationships across sex worker and abolitionist positions. Other feminists with more distinct ideological positions also made strategic decisions to work within and for the HTICs’ individualized social service mission. Abolitionists—­even those committed to legislative forms of decriminalization for those who sell sex—­commend the courts for recognizing commercial sex as human trafficking and for serving both victims’ emotional and psychological needs (as well as potentially law enforcement’s efforts to combat trafficking). Sex worker



Governance Feminism in New York’s Courts

103

organizations more cautiously—­but not insignificantly—­support elements of harm reduction, specifically that the HTICs allow many defendants to avoid jail time and a criminal record and to receive beneficial services.79 Feminist defense attorneys, while often critical of the courts, recognize that many (but by no means all) of their clients experience the HTICs as more lenient and compassionate than the courts that preceded them and appreciate receiving services that are not conditioned on cooperation with law enforcement. At the same time, these possibilities for convergence and depoliticization arise because from almost any feminist perspective—­liberal, abolitionist, sex worker—­these courts are a compromise. Neither abolitionists nor sex worker organizations nor feminists in between should want to see women arrested, detained, and hauled into court on prostitution charges and potentially threatened with incarceration. But the very aspects of the HTICs that make them a compromise also make them such an apt example of Governance Feminism. That is, these courts raise questions endemic to all Governance Feminism projects about when and whether it is worth it to dilute one’s aims, to get some but not all of what you want. To be sure, advocates with different feminist perspectives will answer this question differently; we conclude with brief excerpts from our interview with Mogulescu to highlight one approach to Governance Feminism we admire (a more detailed interview transcript, edited for length, follows in chapter 5). We thus also conclude by describing Governance Feminism not as a subject of normative criticism but rather as a lived analytical practice that changes as it unfolds on the ground.

Conclusion: Critical Governance Feminism I suspect, I fear, that I may have had more of an impact in ushering in the creation of this new model than I may have wanted to. . . . I was advocating for a more refined critique of the criminal justice system, better outcomes for my clients facing prostitution charges and a deeper and more mature understanding of their circumstances. What was heard was that people arrested for prostitution are victims of trafficking—­ which I, in fact, did say, and I have to own that, and that may have led to an oversimplified response.80

104

Amy J. Cohen and Aya Gruber

In 2011, Kate Mogulescu created the Legal Aid Society’s Trafficking Victims Legal Defense and Advocacy Project—­the first anti-­trafficking project established by a public defender. Working closely with CCI, she advanced the idea of prostitution-­defendant-­as-­trafficking-­victim as an intelligible legal category in court: As human trafficking became the issue of the century, lawmakers and law enforcement would complain that “we just don’t know how to find victims, we don’t know where victims are.” A lot of what we at Legal Aid were saying was that “our clients are, in fact, victims . . . but they are not [identified] as victims; rather they’re just being prosecuted.”

Mogulescu’s efforts to convince lawmakers and court reformers that her “clients overwhelming[ly] deal with issues of trafficking and sexual exploitation” were featured in the New York Times, the Huffington Post, the New York Daily News, and by the American Bar Association.81 Mogulescu’s use of sex trafficking to advocate for her clients mired within the criminal justice system was both strategic and sincere. She recognized the political power that numerous feminist as well as social and religious conservative anti-­trafficking groups wielded, and she seized on the opportunity to advocate for her clients in language these groups would find compelling. “You know,” she added, “I hope that doesn’t sound disingenuous because honestly when it came to human trafficking it was what I was hearing from my clients that allowed me to match these things up.” 82 This match, she explained further, was made possible by “the changing understanding of trafficking to include exploitation by intimate partners on a smaller scale. . . . Whether doctrinally appropriate or inappropriate . . . trafficking could exist solely as an interpersonal relationship, and this did line up with my clients’ experience.” In other words, Mogulescu herself used contemporary feminist understandings of prostitution as an experience and effect of domestic violence to encourage New York City criminal courts to understand her clients as sex trafficking victims. At the same time, there were risks to her strategy, particularly risks of representation. First, Mogulescu worried that her work contributed



Governance Feminism in New York’s Courts

105

to an essentialized victim-­perpetrator-­savior paradigm with law enforcement coming out on top: There was a huge media spotlight, a sensational interest in human trafficking that gave me pause for a lot of reasons. . . . Anytime that there is tremendous interest in an issue, it tends to become oversimplified and so it’s a limiting victim narrative, a simple one of victim versus perpetrator and law enforcement as the hero. 83

Second, she was all too aware that she was describing her clients in terms they would never use and likely even disavow. For this reason the words “Trafficking Victims Legal Defense and Advocacy Project” did not appear on any materials, including her own business cards, seen by clients (she subsequently changed the name to the Exploitation Intervention Project). She elaborated: Even though my clients experience force, fraud, and coercion in their induction and continued engagement in prostitution, that wasn’t the sort of thing they were identifying with. What we were hearing identity-­ wise was not that being victims of trafficking was the primary thing in their lives. Rather it was really complicated layers of poverty and other system failures that seemed much more important to our clients and much more pressing in terms of the issues and needs that were created. I still to this day have not had a client come into our first meeting or to arraignment or to wherever and say, “I’m a victim of trafficking and I need help or services for victims of trafficking, or want my trafficker arrested.” . . . They will say, “I need options, I need opportunity, education, somewhere to live, a job,” they are very clear on all the things that they need that really actually have nothing to do with trafficking.84

A depiction more faithful to her clients’ self-­expressions would suggest reforms based less on criminal law than traditional state welfare institutions (if not labor-­market regulation). Mogulescu made the decision nonetheless, “subject to a lot of internal struggle,” to join a broader feminist anti-­trafficking initiative that coalesced powerfully around the criminal court system.85 In our interviews, we encountered numerous participants working with the HTIC who held similar perspectives—­ that is, feminists engaged in the project of describing prostitution

106

Amy J. Cohen and Aya Gruber

defendants as victims of sex trafficking even as they held more nuanced and differentiated views of the actual and, to be sure, uneasy, realities of these women’s (and men’s) lives. Their decisions to join a campaign spearheaded by prostitution abolitionists to redescribe prostitution as sex trafficking has in some ways further emboldened criminal legal institutions to police, administer, and punish commercial sex. At the same time, as Mogulescu argues, deploying arguments about individual victimization as a category of legal recognition serves the interests of prostitution defendants in criminal court far more than arguments based on agency or economic need. Even more, it remains possible that the contradictions embedded within the HTICs, as well as the transgressive commitments of some feminist court actors pushing harm reduction, not carceral forms of abolition, may ultimately help to spur political-­legislative mandates for decriminalization that are more in line with Mogulescu’s own vision. What, then, would critical engagement with Governance Feminism suggest? Responsible governance, Halley cautions, does not demand moral purity or representational accuracy but rather an account of whether the governance strategy, with all its compromise and contradictions, was worth it—­that is, an account of cost and benefits guided not only by political vision but political constraints.86 For Mogulescu and her allies—­who labor endlessly on behalf of clients in the criminal justice system—­the question is complex. Her team has undoubtedly achieved better case dispositions, yet at the cost of advancing a doctrinal category they simultaneously suspect. To that end, our chapter—­read as an exercise in Governance Feminism—­offers a necessary, if also modest, first step—­that is, an effort to identify and, we hope, to deconstruct some of the dominant governance frames that have captured the New York Court system so that outcomes, broadly defined, can be assessed.

Notes 1. Citizens Crime Commission of New York City, “NY Chief Judge Lippman Announces Revolutionary Approach to Human Trafficking at Crime Commission Breakfast,” September 25, 2013, on file with the author. 2. Jonathan Lippman, “Announcement of New York’s Human Trafficking Intervention Initiative,” Center for Court Innovation, September 25, 2013, https://www​



Governance Feminism in New York’s Courts

107

.courtinnovation.org/articles/announcement-new-yorks-human-trafficking​ -­i ntervention-initiative (accessed March 10, 2017). 3. Janet Halley, “Preface: Introducing Governance Feminism,” in Janet Halley, Prabha Kotiswaran, Rachel Rebouché, and Hila Shamir, Governance Feminism: An Introduction (Minneapolis: University of Minnesota Press, 2018), x. 4. See Aya Gruber, Amy J. Cohen, and Kate Mogulescu, “Penal Welfare and the New Human Trafficking Intervention Courts,” Florida Law Review 68 (2016): 1333–­ 1402; Amy J. Cohen, “Trauma and the Welfare State: A Genealogy of Prostitution Courts in New York City,” Texas Law Review 95 (2017): 915–­91. 5. For the origins of this view, see George L. Kelling and James Q. Wilson, “Broken Windows: The Police and Neighborhood Safety,” Atlantic Monthly, March 1, 1982. 6. Issa Kohler Hausmann, “Managerial Justice and Mass Misdemeanors,” Stanford Law Review 66, no. 3 (2014): 611–­94. 7. For example, here is a report of prostitution case outcomes in New York criminal courts between 1993 and 1994: 17 percent received community and/or social services; 16 percent received jail; 13 percent received a conditional discharge; 3 percent received a fine; 7 percent received an adjournment in contemplation of dismissal; and 43 percent received time served. Michele Sviridoff, David B. Rottman, Rob Weidner, Fred Cheesman, Richard Curtis, Randall Hansen, and Brian J. Ostram, Dispensing Justice Locally: The Impacts, Cost and Benefits of the Midtown Community Court (Washington, D.C.: National Institute of Justice, U.S. Department of Justice, 2002), 4.3. 8. Toko Serita, Presiding Judge, Queens County Human Trafficking Intervention Court, interview by Aya Gruber, Queens, N.Y., June 24, 2014. 9. Ryan Wall, Staff Attorney, Brooklyn Legal Aid Society, interview by Amy J. Cohen and Aya Gruber, Brooklyn, N.Y., June 25, 2014. 10. The Center for Court Innovation is “a public/private partnership between the New York State Unified Court System and the Fund for the City of New York.” It functions as a research and development branch of the court system focused on solving court programs. See http://www​ implementing diversionary problem-­ .courtinnovation.org/who-we-are. 11. Robert Victor Wolf, “New Strategies for an Old Profession: A Court and a Community Combat a Streetwalking Epidemic,” Justice System Journal 22, no. 3 (2001): 347–­59, at 348. 12. Ibid., 347–­48; emphasis added. 13. Ibid., 351. 14. Ibid., 352; John Feinblatt, Greg Berman, and Michele Sviridoff, Neighborhood Justice: Lessons from the Midtown Community Court (New York: Center for Court Innovation, 1998), 5. 15. Wolf, “New Strategies for an Old Profession,” 352. 16. In the Midtown Community Court’s first year, average jail sentences were fifteen days compared with five days in traditional criminal courts. Sviridoff et al., Dispensing Justice Locally, 4.3–­4.4. 17. Wolf, “New Strategies for an Old Profession,” 353. 18. Feinblatt, Berman, and Sviridoff, Neighborhood Justice, 11–­12.

108

Amy J. Cohen and Aya Gruber

19. Wolf, “New Strategies for an Old Profession,” 353. 20. Ibid., 351. 21. Victoria Malkin, “The End of Welfare as We Know It: What Happens When the Judge Is in Charge,” Critique of Anthropology 25, no. 4 (2005): 361, 381, 384n4. 22. Kristine Herman, Strategic Initiatives Specialist, Brooklyn Defender Services, telephone interview by Amy J. Cohen and Aya Gruber, June 10, 2014. 23. Wolf, “New Strategies for an Old Profession,” 355. 24. Ibid., 356. 25. Public Hearing: Human Trafficking, Before the Senate Standing Committee on Codes (February 2, 2006) (statement of Senator Marty Golden), 15. 26. Toward the end of the hearing, anti-­trafficking advocate Carol Smolenski proposed to talk “on a subject that other people have not been talking about . . . at all.” “I want to tell you about the American kids,” she explained. Public Hearing: Human Trafficking (February 2, 2006) (statement of Carol Smolenski, Executive Director of End Child Prostitution, Child Pornography and Trafficking of Children for Sexual Services), 163, 165. 27. Resolution Calling upon the State of New York to Recognize That Human Trafficking Is a Crime, Before the Committee on Women’s Issues (City Council of New York, September 28, 2006) (statement of Helen Sears, Chairperson), 46–­47. 28. Resolution Calling upon the State of New York (September 28, 2006) (statement of Letitia James, Council Member), 30. 29. Oversight: How Do the Human Trafficking Intervention Courts Address the Needs of New York City’s Runaway and Homeless Youth Population? Before the Committee on Youth Services (City Council of New York, December 12, 2013) (statement of Judy Harris Kluger, Judge, New York City Criminal Court), 38; emphasis added. 30. Serita, interview. 31. Oversight: How Do the Human Trafficking Intervention Courts Address the Needs of New York City’s Runaway and Homeless Youth Population? (December 12, 2013) (statement of Dorchen Leidholt, Director, Center for Battered Women’s Legal Services, Sanctuary for Families), 101. 32. New York State senator Paulin authored the Trafficking Victims Protection and Justice Act (TVPJA), which was enacted in 2015. See Trafficking Victims Protection and Justice Act, Pub. L. No. 106-­386, § 106, 114 Stat. 1464, 1474 (2000) (codified at 22 U.S.C. § 7104 [2012]) ch. 368; and Andrew J. Lanza, “Lanza & Paulin Announce Passage of Historic Human Trafficking Bill in Both Houses of Legislature,” New York State Senate, March 17, 2015, https://www.nysenate.gov/newsroom/press-releases /andrew-j-lanza/lanza-paulin-announce-passage-historic-human-trafficking-bill (accessed March 10, 2017). Among other things, the TVPJA enhances penalties for trafficking offenses, creates additional crimes related to prostitution, and removes the word “prostitute” from the Penal Law, replacing it with the phrase “person for prostitution.” Ibid. 33. Oversight: How Do the Human Trafficking Intervention Courts Address the Needs of New York City’s Runaway and Homeless Youth Population? (December 12, 2013) (statement of Amy Paulin, State Assembly Women, New York State Assembly), 88. 34. Jonathan Lippman, “New York’s Efforts to Combat Human Trafficking in the Modern Era,” Albany Law Review 77 (2014): 7.



Governance Feminism in New York’s Courts

109

35. Oversight: How Do the Human Trafficking Intervention Courts Address the Needs of New York City’s Runaway and Homeless Youth Population? (December 12, 2013) (statement of Judge Judy Kluger), 38. 36. Courtney Bryan, Director of Criminal Justice Operations, Center for Court Innovation, interview by Amy J. Cohen, New York, June 23, 2014. 37. Ibid. 38. Robyn Mazur, Director of Special Projects, Violence against Women, Center for Court Innovation, interview by Amy J. Cohen, New York, June 23, 2014. 39. Ibid. 40. Bryan, interview. 41. Ibid. 42. For details on trauma-­informed practice in the HTICs, see Cohen, “Trauma and the Welfare State.” 43. Miriam Goodman, Assistant Director for Anti-­Trafficking and Trauma Initiatives, Center for Court Innovation, interview by Amy J. Cohen and Aya Gruber, New York, June 24, 2014. 44. Combating Sexual Exploitation in NYC: Examining Available Social Services, Before the Committee on Women’s Issues and Committee on General Welfare (City Council of New York, June 27, 2011) (statement of Lori Cohen, Senior Staff Attorney, Center for Battered Women’s Legal Services), 105; emphasis added. See also Village Voice Media to Stop Accepting Adult Services Advertisements on Its Online Classified Site, Backpage.com, Before the Committee on Women’s Issues (City Council of New York, April 25, 2012) (statement of Dorchen Leidholt, Director of Center for Battered Women’s Legal Services, Sanctuary for Families), 133–­34. (“Sanctuary has long recognized that domestic violence and sex trafficking are interconnected practices of gender based violence, involving often identical tactics of power and control. In both domestic violence and sex trafficking[,] victims, primarily women and girls, are lured into situations of domination and exploitation by perpetrators, frequently men who hold themselves out as protectors and loving partners.”) 45. See also Combating Sexual Exploitation in NYC (June 27, 2011) (statement of Anindita Chatterjee Bhaumik, External Affairs Liaison, CONNECT), 158. (“Our experience at CONNECT shows that IPV [intimate partner violence] and witnessing violence in the home is a major reason for girls being trafficked.”) 46. Sarah Schweig, Danielle Malangone, and Miriam Goodman, Prostitution Diversion Programs (New York: Center for Court Innovation, 2012), 3. 47. Mazur, interview; emphasis added. 48. Bryan, interview. 49. Oversight: How Do the Human Trafficking Intervention Courts Address the Needs of New York City’s Runaway and Homeless Youth Population? (December 12, 2013) (statement of Judge Judy Kluger), 12. 50. Ibid., 14–­15. 51. Trafficking Victims Protection and Justice Act, ch. 368, sec. 3, § 70.02(a), 2015 N.Y. Laws 960, 960 (enacting sex trafficking as a class B violent felony); N.Y. Penal Code § 230.34 (A) (2) (McKinney 2008). 52. Trafficking Victims Protection and Justice Act, ch. 368, sec. 3, § 70.02(c), sec. 5, § 135.35(3)(a), (b), 2015 N.Y. Laws 960, 961–­62 (enacting particular forms of labor

110

Amy J. Cohen and Aya Gruber

trafficking as a class D violent felony, a lessor felony charge, we should note, than class B). 53. Of course, this is not simply an ideological but also an empirical question. Sociologists Bill McCarthy, Cecilia Benoit, and Mikael Jannson outline what they see as the two dominant competing approaches to explain adult involvement in sex work: on the one hand, negative childhood experiences, including physical and sexual abuse, family instability, and family poverty; on the other hand, more immediate circumstances, such as current economic needs, education, and employment opportunities. In a comparative of study of people engaged in sex work versus in food/beverage service and barbering/hairstyling, they found that education and occupation measures were “independently associated with sex work.” They also found that negative childhood experiences “were more common among people employed in sex commerce than among workers in the other industries” but that “the majority of people involved in sex work did not have these experiences and a substantial minority of people involved in the other occupations had them.” Bill McCarthy, Cecilia Benoit, and Mikael Jansson, “Sex Work: A Comparative Study,” Archives of Sexual Behavior 43 (2014): 1379–­90, at 1387. 54. Goodman, interview. 55. Mazur, interview. 56. Kim Affronti, Deputy Bureau Chief, Queens County District Attorney’s Office, interview by Amy J. Cohen and Aya Gruber, Queens, N.Y., June 24, 2014. 57. See generally Preliminary Budget Hearing, Before the Committee on Courts & Legal Services (New York City Council, March 27, 2015), 10. 58. Sarah Schweig, “Changing Perceptions: A Conversation on Prostitution Diversion with Judge Fernando Camacho,” January 2012, https://www.courtinnovation​ .org/publications/changing-perceptions-conversation-prostitution-diversion​ -judge-fernando-camacho (accessed March 10, 2017). 59. Combating Sexual Exploitation in NYC (June 27, 2011) (statement of Sarah Dolan, Advocate Counselor, Services to Access Resources in Safety, Sanctuary for Families), 114. 60. Village Voice Media to Stop Accepting Adult Services Advertisements (April 25, 2012) (statement of Norma Ramos, Executive Director, Coalition against Trafficking in Women), 165; emphasis added. 61. For example, the 1996 Personal Responsibility and Work Opportunity Reconciliation Act, which scaled back means-­tested public assistance in the United States, exempts domestic violence victims from several funding restrictions. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 42 U.S.C. § 602(a) (7) (2010) (Family Violence Option), and 42 U.S.C. § 608(a)(7)(c)(iii) (2010) (Hardship Exception).  62. See, e.g., Bernard E. Harcourt, “Neoliberal Penality: The Birth of Natural Order, the Illusion of Free Markets,” University of Chicago Public Law and Legal Theory Working Paper No. 238, 2008. 63. Lippman, Announcement of New York’s Human Trafficking Intervention Initiative. 64. See Gruber, Cohen, and Mogulescu, “Penal Welfare.”



Governance Feminism in New York’s Courts

111

65. See, e.g., Kate Mogulescu, “The Super Bowl and Sex Trafficking,” New York Times, January 31, 2014, https://www.nytimes.com/2014/02/01/opinion/the-super​ -bowl-of-sex-trafficking.html (accessed March 10, 2017). 66. Hannah Freilich, Deputy Bureau Chief, Bronx County District Attorney’s Office, interview by Amy J. Cohen and Aya Gruber, Bronx, N.Y., June 26, 2014. Freilich echoes a dynamic common in both the domestic violence and trafficking realm where benefits—­specifically, visas, a huge asset for undocumented victims—­are tied by statute to cooperation with prosecutors. The “U Visa” requires the applicant to have actually provided beneficial information to and aided law enforcement in a domestic violence case, and the “T Visa” requires that the applicant provide any aid requested by prosecutors in a trafficking case. 8 U.S.C.A. § 1101(A)(15)(U) and (T). 67. Ibid. 68. Anonymous HTIC staffer, telephone interview by Amy J. Cohen and Aya Gruber, July 11, 2014. 69. Herman, interview. 70. Ibid. 71. Combating Sex Trafficking in NYC: Examining Law Enforcement Efforts—­ Prevention and Prosecution, Before the Committee on Public Safety and the Committee on Women’s Issues (City Council of New York, October 19, 2011) (statement of Lauren Hersh, Chief, Sex Trafficking United, Brooklyn District Attorney’s Office), 108. 72. Oversight: How Do the Human Trafficking Intervention Courts Address the Needs of New York City’s Runaway and Homeless Youth Population? (December 12, 2013) (statement of Kate Mogulescu, Supervising Attorney, Legal Aid Society), 118–­19. 73. Judy Harris Kluger, “New York’s Trafficking Courts Save Lives,” New York Daily News, October 12, 2014; emphasis added. 74. Molly Crabapple, “Special Prostitution Courts and Myth of ‘Rescuing’ Sex Workers,” Vice, January 5, 2015, https://www.vice.com/en_us/article/yvq9bx/sex​ -workers-and-the-city-0000550-v22n1 (accessed March 10, 2017). 75. Serita, interview. 76. Shari Michels, Presiding Judge, Bronx County Human Trafficking Intervention Court, interview by Amy J. Cohen and Aya Gruber, Bronx, N.Y., June 26, 2014. 77. Bryan, interview. 78. Goodman, interview. 79. For example, Emma Caterine, an organizer for the Red Umbrella Project, a sex workers rights organization, ventured that the HTICs have significantly reduced “the amount of incarceration that is happening to people in the sex trade” and, moreover, that some HTIC diversionary programs are “pliable” and open to her organization’s efforts to emphasize harm reduction. Emma Caterine, Community Organizer, Red Umbrella Project, telephone interview by Amy J. Cohen and Aya Gruber, July 7, 2014. To be sure, the Red Umbrella project has its own critical relationship to the courts. See, e.g., Audacia Ray and Emma Caterine, Criminal, Victim, or Worker? The Effects of New York’s Trafficking Intervention Courts on Adults Charged with Prostitution-­Related Offenses (New York: Red Umbrella Project, 2014).

112

Amy J. Cohen and Aya Gruber

80. Kate Mogulescu, founder and director of the Legal Aid Society’s Exploitation Intervention Project, telephone interview by Amy J. Cohen and Aya Gruber, July 29, 2014. 81. Mogulescu, interview. 82. Ibid. 83. Ibid. 84. Ibid. 85. Ibid. 86. Halley, “Preface: Introducing Governance Feminism.”

CHAPTER 5

An Accidental Governance Feminist An Interview with Kate Mogulescu AMY J. COHEN AND AYA GRUBER

Kate Mogulescu had been working as a public defender for several years at the Legal Aid Society of New York when she became interested in a particularly vulnerable group of clients: those charged with prostitution offenses.1 She observed the regular contempt and derision directed toward these defendants by court actors and especially police. At the end of the first decade of the 2000s, Kate began to develop a strategy to coordinate prostitution defense in an effort to shield clients from invasive criminal intervention and secure less humiliating treatment by state actors. At the same time, national interest in human trafficking exploded. Influential criminal justice actors outside of Legal Aid, including feminists who had long held prostitution abolitionist views, proposed reforming the criminal system in ways that would potentially recognize prostitution defendants as human trafficking victims. Kate was concerned that this attention would engender policies that sought to “save” women by arresting and prosecuting them. Yet she also hoped that the newly minted preoccupation with trafficking would translate into less punitive outcomes and better services for her clients. Accordingly, Kate sought a seat at the table in discussions about prostitution law reform in New York’s changing legal landscape. She explains, “It was just like you would go to meeting after meeting, panel after panel where the defense bar was nowhere to be found. Particularly the public defense bar, and that seemed to me to be a huge gap.” In 2011, Kate created the Legal Aid Society’s Trafficking Victims Legal Defense Advocacy Project (renamed the Exploitation Intervention 113

114

Amy J. Cohen and Aya Gruber

Project)—­the first anti-­trafficking project to exist within a public defender’s office. Her efforts to convince lawmakers and court reformers that her “clients overwhelmingly deal with issues of trafficking and sexual exploitation” were featured in the New York Times, the Huffington Post, and the New York Daily News, and by the American Bar Association. In short, she got a seat at the table. However, becoming a stakeholder with influence in the formative stage of the human trafficking courts came with its own complex challenges. What follows is a transcript of an interview with Kate that describes how she participated in the broader movement to redefine prostitution defendants as victims of trafficking and how she constantly navigates its complex terrain. You are a complicated figure. On the one hand, you created the “Trafficking Victims Advocacy Project.” On the other hand, you have been outspoken in your criticism of mainstream trafficking discourse. How did you begin this work? I began my work representing people charged with prostitution-­related offenses in New York City in late 2009. The experience I was hearing from these clients was one of extreme poverty, exposure to violence and sexual assault, and a certain disconnectedness from their own involvement in prostitution. I was also hearing about levels of force, fraud, and coercion that lined up with the definition of human trafficking in the federal anti-­trafficking law and with the definition of sex trafficking in the recently enacted New York State anti-­trafficking law. I wanted to get better outcomes for a client group that was marginalized, particularly in criminal court, seemed incredibly sympathetic, yet was bearing the weight of our policing in New York City in a fairly specific and harmful way. I wanted to offer a new critique of the mass misdemeanor policing that was killing our criminal justice system. I began to talk about what I was seeing and who these clients were. I expressed my frustration at their omission from the mainstream discussion of trafficking. At the same time you were describing your clients as victims of trafficking, there was all this exploding interest in trafficking—­including from prostitution abolitionist and religious and conservative groups. How did that interest intersect with your work?



An Accidental Governance Feminist

115

This was right at the time that the interest in human trafficking as “modern-­day slavery” was beginning to crescendo. I was deeply cynical of the growing interest, and awareness raising, mostly because it seemed to promote adherence to a standard criminal justice approach that praised law enforcement as heroes, rendered victims as tools of law enforcement—­simultaneously lamenting how difficult it was to find victims and get them to cooperate while maintaining the investigation and prosecution of traffickers as the most important way to combat trafficking. I was cynical of anything that favored increased prosecution and penalty as a fix. This was mostly because of my long-­standing belief that the criminal justice system does not reach just outcomes or its stated goals, but particularly so because what I was hearing from clients was much more complicated—­and nuanced—­than a traditional criminal justice approach could meaningfully confront. Yet despite your cynicism and your more nuanced understanding of your own clients, you made the decision to describe your clients as victims of trafficking. Why? Well, because it was accurate and true. Many of my clients were trafficked at the time of their arrest or had previously experienced trafficking. This was particularly so given the changing understanding of trafficking to include exploitation by intimate partners on a smaller scale—­a situation that fit precisely what clients described and confronted. Whether doctrinally appropriate or inappropriate, there was a push to have the definition of trafficking shift so as not to require crossing of borders or more organized business models. Trafficking could exist solely as an interpersonal relationship, and this did line up with my clients’ experience. And, of course, there were benefits to making this connection between my clients and trafficking that were important and remain important. Helping people understand my clients as trafficked was important to get better outcomes and dispositions—­to make more services available to them and more service providers willing to serve them (something always challenging with justice-­involved populations). An unanticipated tangential benefit was also to broaden awareness of how the criminal justice system operates, particularly on the misdemeanor level. Connecting my clients to the trafficking discourse allowed me to shine a spotlight on the dysfunctional and perverse way criminal

116

Amy J. Cohen and Aya Gruber

courts function and allowed me to do that with audiences who weren’t necessarily criminal justice reformers or even advocates concerned with criminal justice issues. Were there also costs to this decision? I suspect, I fear, that I may have had more of an impact in ushering in the creation of the new court model oriented around trafficking than I may have wanted to. I was advocating for a more refined critique of the criminal justice system, better outcomes for my clients facing prostitution charges, and a deeper understanding of their circumstances. What was heard was that people arrested for prostitution are victims of trafficking—­which I, in fact, did say, and I have to own that, and that may have led to an oversimplified response. Say more. What was the oversimplified response? Well, for one, we now have “human trafficking intervention courts” (HTIC) that many people in New York helped to create. The name of the court initiative was really troubling to me. To begin with, if we are comfortable enough with the notion that those being prosecuted in these courts are so likely to be trafficked that we will name the entire initiative accordingly, then we must also be comfortable enough to say these people should not be arrested or prosecuted at all. We lost all sight of that important discussion about policing and prosecution in the rush to create this initiative. In addition, I saw the name of the initiative as a problem in a very practical sense. To call the court a Human Trafficking Intervention Court, and to use the name in practice, could create a safety concern for defendants in the court who were, in fact, trafficked. It could appear to their traffickers that they were disclosing their trafficking to the court, even when they weren’t, and could suggest cooperation with law enforcement that could have repercussions. Also, defendants need not identify as trafficking victims in order to engage with the services offered in the courts. Therefore, the name could be misleading to defendants who believed they would need to identify or disclose in order to get the benefit of better outcomes and access to services. As we are constantly fighting to make sure that is not the case, it would be a shame for that to be the impression. Finally, clients themselves, even those who can legally be considered trafficked, often struggle with the language



An Accidental Governance Feminist

117

around trafficking. The centrality of the language of victimization is alienating to many trafficked people who do not see themselves as victims and work to maintain a sense of agency and self-­determination. So you find the name “Human Trafficking Intervention Court” contradictory, alienating, and even dangerous. But do you think the court itself is working to alleviate the problems of human trafficking? In order to fully delve into the practical consequences of this question, one needs to simply spend time in any criminal court in any city or municipality anywhere in this country. Right away, you are struck by the dysfunction caused by the burden of the volume of cases. You can’t help but realize how totally inappropriate it would be to attempt to deal with something like human trafficking in this environment. Our criminal courts are not sites of social change. We need only look at how well we have done with respect to other social problems—­ domestic violence, substance abuse—­in the criminal justice system to know this to be true. I don’t think we can meaningfully reckon with the issue of human trafficking in a criminal court where the very people we are calling victims are being prosecuted as defendants. By doing so, we fail to deal with the bigger issues that make people vulnerable to trafficking and exploitation that are complicated and deep and difficult to address. The HTIC initiative coined the phrase “victim-­defendant.” What does that even mean? You don’t use the word “trafficking” in any material seen by your clients. Why? I developed our project not because I was interested in human trafficking and sought out to identify and serve trafficked people, but because the people I was representing were victims of human trafficking and also victims of many other crimes and system failures that were not being addressed. That said, many of my clients do not identify as victims of trafficking. In other words, even though my clients experience force, fraud, and coercion in their induction and continued engagement in prostitution, that isn’t the sort of thing they identify with. What we were hearing identity-­wise was not that being victims of trafficking was the primary thing in their lives. Rather, it was really complicated layers of

118

Amy J. Cohen and Aya Gruber

poverty and other system failures that seemed much more important to our clients and much more pressing in terms of the issues and needs that were created. I still to this day have not had a client come into our first meeting or to arraignment or to wherever and say, “I’m a victim of trafficking, and I need services specifically for victims of trafficking, or want my trafficker arrested.” They will say, “I need options, I need opportunity, education, somewhere to live, a job”; they are very clear on all the things that they need that really actually have nothing to do with trafficking. We are in the process of changing the name of the project for precisely these reasons. The project services are not reserved only for those who identify as trafficked, and we don’t want to perpetuate any confusion around that point. It is difficult, however, to find a project name that adequately describes our aims, philosophy, and who we represent, so that has been a struggle. So to be clear: you are arguing that many of your clients meet a formal legal definition of trafficking, but few, if any, self-­identify as victims in this way. This sounds different from what we hear from some other anti-­ trafficking organizations. Other service providers and legal advocates figure out which populations they will serve by limiting to a certain demographic or based on a particular ideology or self-­identification. But public defenders represent people who are arrested, charged with crimes, and cannot afford an attorney. My clients are not self-­selecting or identifying; I don’t get to choose based on ideology, principle, or demographic. Our clients don’t seek out our services; they are connected to us by virtue of their own arrest and prosecution. Who are your clients? While I cannot purport to discuss patterns or trends related to prostitution as a whole, I can describe who is arrested and prosecuted for prostitution in New York City and therefore becomes our client. I think it is important to remember this distinction. My experience representing people who are arrested for engaging in prostitution has led me to identify certain common characteristics and shared experience. Our clients are mostly women (both cis and transgender), although a small number of our clients identify as men. Overwhelmingly, people



An Accidental Governance Feminist

119

arrested for prostitution in New York City, and across the country, are women of color. They bear the brunt of anti-­prostitution policing in the same way that communities of color bear the brunt of public-­order policing. Our clients are all ages. But there is a profound interest in sexually exploited minors, which often plays out as an intense infatuation with younger girls involved in prostitution. This interested has prompted an array of Safe Harbor laws, media interest, resources, and sympathy. Women over the age of eighteen who are arrested for prostitution offenses simply do not garner the same response. Then there is also this distinct thing that happens to justice-­involved women in their arrest and prosecution. Written into every part of the process is a specific and targeted judgment that, even when completely irrelevant to the legal case, involves scrutiny of numerous life decisions—­of their value as a mother, daughter, nurturer. For example, if a judge or prosecutor learns that one of our clients is the mother of a young child or children, this can be used as justification for continued incarceration. This is so even without any specific allegation that the child was neglected or at all impacted by the alleged criminal conduct. It is simply the notion of being a mother and being involved in prostitution that attracts a different level of paternal response. Men charged criminally do not experience the same thing. Given that so many of your clients are women, perhaps we could ask if the term “Governance Feminist” helps you think about your work? I am not sure. My position as a public defender frames how I came into anti-­trafficking work, what I hoped to accomplish, where tension exists between me and other stakeholders, and where I face exclusion. The feminist debates around prostitution tend to break down into two distinct camps: structuralist versus individualist or what others have described as a divide between abolitionist versus sex work. My views as a public defender seem not to fit anywhere. Why do your views seem outside dominant feminist debates? When I described my clients as trafficked, and demanded their inclusion in trafficking discourse along with better outcomes and services for them, the abolitionist groups celebrated my genius and bravery. However, when I remained critical of law enforcement, or the

120

Amy J. Cohen and Aya Gruber

courts, or legislative strategy that continues to simply increase the penalties and liability around anything having to do with prostitution as harmful to my clients—­I became a pariah. Particularly around the HTICs, abolitionists seem to have a strong investment in the HTIC initiative being considered a success, without any real interest or analysis in how my clients fare in the courts. Similarly, those who promoted a sex-work- or rights-­based approach didn’t fully know what to make of our project either. Sex workers rights folks cringe every time I draw a connection between my clients and trafficking. Their concern is that this perpetuates the problematic conflation of prostitution and trafficking. I understand this concern and remain mindful of it. Although this binary is fiercely contested, neither group’s position fully captures my clients’ experience. My clients don’t identify as victims of trafficking who want to see prostitution abolished, nor do they identify as sex workers who place their involvement in prostitution in a labor rights paradigm. Some of this may be lack of access to language and ideology, but some is just that these two constructs simply don’t capture who my clients are and the issues that they confront. Therefore, I’ve come to suspect that the vigorous contest which plays out largely in the media and academy is just not that meaningful to my clients who continue to fall outside of both “camps.” For me personally, it means that engaging in the larger feminist discourse becomes difficult. That sounds like a tricky representational dynamic. How do you manage it on a day-­to-­day level in your work? This may be a place where the Governance Feminist model is relevant because, as I understand it, it asks feminists to reflect upon how they speak for other women and how they represent them in institutions of power like courts. So my first reaction is to say that our project team experiences profound and consistent frustration at those who purport to talk about, and for, our clients but do not actually understand who they are or their experiences. However, this tension constantly defines, and redefines, our efforts to advocate for our clients in and out of court. I am always aware, and concerned, that as much as I understand my clients to experience trafficking, equally as important to describing them as such publicly is



An Accidental Governance Feminist

121

keeping them from being identified as trafficked individually, particularly keeping the notion of their trafficking out of the criminal court processing of their case. So at the same time as you purposefully describe your clients as trafficked in media and publicity material, you describe them as not trafficked in court? Why? The reason we try to shield them from the trafficking label in court is twofold. First, many times we actually attempt to prevent our clients from being identified as victims to shield them from getting caught up in law enforcement’s vigorous interest in arresting and prosecuting traffickers. Often, this is not a viable option for my clients. This is because of their profound distrust of law enforcement (based on their own personal experience and the fact that the majority are members of communities that have built a strong, and rightful, distrust of law enforcement), because the goals of law enforcement don’t line up with our clients’ goals, and clients simply do not want to be complainants in prosecutions against people who are exploiting them. The experience of being a “victim” in a criminal prosecution is often difficult and disappointing. We have to be very protective of clients in this way because once they become of interest to law enforcement investigations, we start bumping up against coercive demands of cooperation. Secondly, in order to make our clients’ involvement with criminal court as short-­term and least intrusive/harmful as possible, we need to avoid the question of whether or not they are trafficked becoming a part of their own case’s adjudication. Part of protecting our clients’ exposure to criminal liability depends on limiting the extent to which they are scrutinized by the court. To protect their own interest, and privacy, we constantly work to avoid court or prosecution-­based inquiries as to whether or not they are trafficked. There is a pretty stark difference between the way we talk about our clients as a group more broadly and how we represent clients on each individual case. Acting as their proxy as opposed to their depictor requires a very different interaction with the issue and language of trafficking. This leads to questions of whether we are acting in good or bad faith, or what might appear to be an “inconsistent course.” The variance might, in fact, come across as disingenuous or doctrinally inappropriate. However, I don’t believe that our depiction of our clients is “merely

122

Amy J. Cohen and Aya Gruber

strategic.” We constantly work to ground the depiction in what we learn from clients themselves, and to use our depictive platform mindfully. Has this strategy—­to minimize trafficking discourse in the “trafficking intervention courts”—­been successful? We have worked really hard to bring in service providers that understand the population we work with and offer appropriate services. Confusing as it may seem, it is rare that the service provision component of a client’s HTIC mandate really deals with trafficking at all. Much more frequently, service providers work to connect clients with educational services, health care, etc. Just as trafficking occupies a large space in the media description of the courts, but a barely perceptible space within the court’s operations, so too with the mandated services. This has been a battle, and is still being resolved in many places, but is crucial. In fact, where we have been most successful is in jurisdictions where we have been able to completely separate someone’s participation in the court, and access to services and a better disposition, to anything trafficking related—­ where we can resist requirements that people cooperate with law enforcement and identify as victims in order to “earn” those things. Most importantly, we are achieving better outcomes for clients. In 2014, our team was able to get 70 percent of the cases we worked on dismissed and sealed completely, without a finding of guilt or any future record of the case.2 Public defenders often experience themselves as among the least powerful players in the court system. Your experience, however, suggests that public defenders, like feminists, can play a significant role in shaping discourse and practice. Do you have any concluding thoughts or advice about how to navigate the transition from outsider to insider, with all the antecedent costs and benefits that come from affecting, in your case, court policy? I’m not sure that I have navigated the transition particularly well, or in a way I would have hoped to if you had asked me in advance. Rather, I continue to be guided by the work that we do for and with our clients. This means we are constantly shifting, redefining, reframing, and struggling.



An Accidental Governance Feminist

123

Given the extreme expansion of the reach of the criminal justice system in modern history, the rise of mass incarceration, the prison industrial complex, and, more recently, the marked increase in the number and percentage of women entering the criminal justice system, it is crucial that public defenders and feminists be at the table. I am proud of where we sit now, as I think it has been well earned. Our clients fare better if we are part of the discussion. I also hope it keeps the discourse slightly more honest, although I suppose that remains to be seen.

Notes 1. Kate Mogulescu, founder and director of the Legal Aid Society’s Exploitation Intervention Project, telephone interview by Amy J. Cohen and Aya Gruber, July 29, 2014. 2. Meredith Dank et al., Consequences of Policing Prostitution: An Analysis of Individuals Arrested and Prosecuted for Commercial Sex in New York City (New York: Urban Institute, 2017).

CHAPTER 6

The Unintended Consequences of Domestic Violence Criminalization Reassessing a Governance Feminist Success Story LEIGH GOODMARK

In the 1980s, funding for shelters, counseling, and other supportive services for women subjected to abuse dominated the policy response to domestic violence (DV) in the United States. Today, the criminal justice response to domestic violence predominates, with hundreds of millions of federal dollars going to courts, police, and prosecutors since the passage of the Violence Against Women Act in 1994.1 This evolution of domestic violence law and policy is largely attributable to the work of governance feminists. Feminists in nongovernmental organizations, in the legal system, in elected positions, and in governmental bureaucracies have used their power and influence to radically change the United States’ response to domestic violence, moving away from empowerment-­oriented services provided by grassroots advocates to an organized, bureaucratized state response with a predilection for retributive responses to domestic violence and a willingness to use the state, through the criminal justice system, as the instrument of enforcement. These advocates from within and outside of state-­ based systems adhered to a particular feminist orientation, now called “carceral feminism.”2 First through the work of individuals and nongovernmental organizations and later through the governmental structures that those individuals and NGOs helped to create, carceral feminists built and sustained that criminal justice-­and state-­centered response to domestic violence. These feminists forged unusual alliances—­most 124



Unintended Consequences of Domestic Violence Criminalization

125

notably with law-­and-­order conservatives—­in their desire to institutionalize the criminalization of domestic violence. And carceral feminists have continued to support and justify those policies, even when they have seen the unintended negative consequences for the women they were supposed to benefit.3 This chapter will trace the development of the criminal-­justice response to domestic violence, a response championed by the feminists of the battered women’s movement; examine the unintended consequences of this carceral feminist approach; and suggest policy changes to remedy some of the damage this approach has done.

The Battered Women’s Movement and Governance Feminism: A Brief History The battered women’s movement grew out of a number of other social movements sweeping the United States in the 1960s and 1970s, including the civil rights, feminist, and anti-­rape movements.4 Many of the founders of the movement came from social work and legal backgrounds or grassroots advocacy, and many had been battered by their partners. Ideological diversity in the movement led to disagreements about the underlying causes of male violence against women, but the battered women’s movement was united in its determination first to provide support and refuge for women who had been abused and, later, to reform the legal system’s response to those women. Early in the movement, however, tensions emerged along a number of lines: women of color expressed concern about white women’s failure to recognize racism and to appreciate the impact of discrimination and powerlessness on men of color, and the grassroots advocates who started the movement had substantially different worldviews from the professionals who increasingly began to people it.5 The first national domestic violence organization, the National Coalition Against Domestic Violence (NCADV), was formed in 1978 at the Consultation on Battered Women held by the U.S. Commission on Civil Rights but grew generally out of feminist organizing around the country. Although grassroots activists had been successful in bringing public attention to the issue of domestic violence, both grassroots feminist activists and feminists within government saw the need for a national organization tasked with advocating for the needs of victims

126

Leigh Goodmark

of abuse. The formation of the NCADV did create and highlight issues within the movement, however. Some grassroots activists felt excluded from the national organization; others were concerned about the wisdom of creating an explicitly feminist organization. Moreover, “few women knew one another, and pronounced geographic and political differences only heightened the tensions.” 6 Nonetheless, NCADV provided the movement with a much-­needed structure for advocacy around federal funding legislation.7 A second national organization, the National Network to End Domestic Violence (NNEDV), started in 1990 as part of the organizing efforts around the Violence Against Women Act (VAWA). Originally named the Domestic Violence Coalition on Public Policy, the organization changed its name in 1995.8 These national organizations provided movement feminists with the clout they needed to have a significant impact on federal legislation and facilitated their partnerships with elected officials like governance feminist Joe Biden, VAWA’s original sponsor. Carceral feminists drew on both the private/public debate and psychological theory to support calls for greater criminalization of domestic violence. One cornerstone of the battered women’s movement was the commitment to make private violence in the home public. Privacy allowed law enforcement to ignore acts of violence against women and sent the message that violence against women was acceptable. Public scrutiny would subject domestic violence to the same punishment as other forms of violence and would invite community condemnation, which in turn would shift community norms around the acceptability of domestic violence. Early research on the effectiveness of the carceral response to domestic violence, particularly the impact of arrest, also seemed to support greater state intervention. Improving the law enforcement response to domestic violence was, therefore, seen as essential. This belief in the power of the state, and particularly of the threat of incarceration, to achieve feminist goals became the ideological basis for the carceral feminist turn in the DV movement. Much of the work of the battered women’s movement was rooted in feminist narratives about the causes of domestic violence. Feminists believed that domestic violence reinforced women’s subordination to men both within and outside of the home and that subordination under patriarchal rule turned women into passive victims. That theory was



Unintended Consequences of Domestic Violence Criminalization

127

bolstered by the work of feminist psychologist Lenore Walker, who popularized the later-­discredited9 cycle theory of domestic violence, arguing that women were unable to leave violent relationships because they were caught up in a cycle of tension building, acute battering, and forgiveness that grew both more frequent and more violent over time.10 Walker also adapted the concept of learned helplessness to explain the behavior of women subjected to abuse. She contended that because women could not anticipate or control the violence, they sank into passivity, lost faith in their ability to change the situation, and were unable to generate alternatives to assist themselves. Walker contended that only disrupting the relationship (or death) could stop the cycle and alleviate women’s learned helplessness. Walker’s theories were used to justify interventionist state policies on the grounds that women subjected to abuse were so passive that they could not be expected to act for themselves. Any unwillingness to cooperate with police or prosecutors to end the violence was viewed as a product of a woman’s coercion, not her free will.

Carceral Feminism and Domestic Violence: The Growth of the Criminal Justice Response If a woman called the police in the 1970s to report that her husband was beating her, chances were good that if an officer responded to the call, that officer would tell the husband to take a walk around the block to cool down. Law enforcement rarely arrested husbands for assaulting their wives (let alone made arrests in same-­sex or dating relationships). Laws specifically criminalizing violence against an intimate partner did not exist. The legal response mushroomed after 1984, when the United States Attorney General’s Task Force on Family Violence issued its report characterizing domestic violence as a criminal justice issue and urging law enforcement to beef up its presence in these cases and to adopt preferred arrest policies.11 Although the membership of the Task Force was derived largely from the law enforcement, government, and counseling communities and was not particularly feminist, witnesses before the Task Force included a number of prominent figures in the battered women’s movement who would likely have identified as feminist, including Donna Medley, the executive director of the NCADV; Evan Stark, a feminist researcher; Ellen Pence, a founder of

128

Leigh Goodmark

the Duluth Abuse Intervention Project; and Deborah Cain, a shelter director from Michigan. At the same time, feminist lawyers in New York and California were suing police departments for their failure to protect victims of domestic violence from abuse. In Bruno v. Codd and Scott v. Hart, feminist lawyers including Laurie Woods and Pauline Gee argued that state intervention through the criminal justice system was essential to remedy power imbalances between men and women that manifested in domestic violence.12 Although these feminist lawyers appreciated that encouraging police to arrest more frequently could have unintended consequences for low-­income African American men, Mimi Kim argues that they believed they could control how the law enforcement response was deployed. Kim writes, “The crux of collaboration [with law enforcement] for these early innovators was the notion of feminist control. Success would only sustain if they remained steadfast in ensuring that the balance of power remained on their side.”13 In a third case, Thurman v. City of Torrington,14 Tracy Thurman and her son, Charles Thurman Jr., were awarded $2.3 million after the Torrington Police Department failed to respond to Ms. Thurman’s numerous requests for assistance. Those requests culminated in a vicious stabbing and kicking that left Ms. Thurman partially paralyzed. Looking for a way to avoid further liability, state legislatures like Connecticut’s, which passed the first statewide mandatory arrest law in the country, began to change their arrest laws to remove the wide discretion that allowed police officers to tell men who had abused their wives to take that walk around the block. Mandatory-­arrest laws required police to make arrests in any domestic violence case where they had probable cause to do so. Early research by criminologists Lawrence Sherman and Richard Berk suggesting that such policies lowered recidivism rates among abusive men bolstered the passage of mandatory-­arrest laws. After Minneapolis adopted a mandatory-­arrest policy, Sherman and Berk conducted studies that tentatively concluded that arrest deterred men from further abuse.15 In response to the research, cities across the country hastened to adopt such policies, notwithstanding the note of caution sounded by one of the studies’ authors, Lawrence Sherman, that widespread adoption of such laws should wait until further research had been conducted. Sherman’s hesitancy was borne out by later studies in



Unintended Consequences of Domestic Violence Criminalization

129

other jurisdictions that presented a much more nuanced view of mandatory-­a rrest laws. These studies demonstrated that mandatory-­ arrest laws had deterrent effects in some locations, had no effect in other locations, and contributed to increases in violence in still others.16 Feminist advocates for VAWA argued that the replication studies were flawed and did not undermine the original findings on the importance of mandatory-­arrest policies.17 The original (1994) version of VAWA required that states adopt mandatory-­arrest policies to be eligible to receive funding; the Act has subsequently been amended to require that states adopt either mandatory-­or preferred-­arrest policies. Every state in the United States currently has a mandatory-­or preferred-­ arrest law in cases involving intimate partner violence. White feminists were at the forefront of the drive to adopt mandatory-­ arrest policies, arguing that the best solution for police inaction was to enact mandatory-­a rrest laws. For example, Joan Zorza, a board member of the NCADV, testifying about the importance of mandatory arrest before Congress, cited findings from a study by the National Center on Women and Family Law that mandatory arrest did not cause disproportionate arrests of people of color (but stating that they had not collected data on how people of color fared in the courts relative to white defendants).18 Sociologists Ellen Pence and Melanie Shepard, who then supported the legal response to domestic violence, later conceded “a certain naïveté on the part of the White middle-­class leadership about the role of the legal system in maintaining existing relations of ruling.”19 Feminists of color, including representatives of nongovernmental organizations, academics, and frontline advocates, were considerably more skeptical of such laws and concerned about their negative impact on people of color. Notably, the National Women’s Law Center, at the urging of Senior Counsel Brenda V. Smith, declined to support VAWA because of concerns about the disproportionate impact of the criminal justice sanctions and funding preclusions on people of color, especially Native American communities.20 But those concerns were largely ignored within the battered women’s movement. White feminists partnered with law-­and-­order conservatives like New York senator Alphonse D’Amato, who declared, “When you batter women, we are going to go after you.”21 This unusual coalition of feminists and conservatives advocated for and enacted laws

130

Leigh Goodmark

and policies removing police discretion in arrest decisions. The week after VAWA’s passage, Professor Mari Matsuda wrote in Ms. magazine of her disappointment both in the carceral focus of the bill and “the eerie silence from feminists seemingly willing to muffle any misgivings about collaboration with the criminal legal system under the thunder of self-­congratulatory applause.”22 Having addressed the problem of police inaction, the battered women’s movement next turned its attention to prosecutors. To explain low prosecution rates in cases involving domestic violence, prosecutors routinely blamed people subjected to abuse, arguing that they could not prosecute without the assistance of the victim of the crime and that victims were frequently unwilling to engage in, and even hostile to, prosecution. In response, the battered women’s movement championed victimless prosecution and no-­drop prosecution. Victimless prosecution (also called evidence-­based prosecution) required prosecutors to treat domestic violence cases like homicide cases, bringing cases based on the evidence collected by police at the scene rather than relying on the testimony of an unavailable victim. No-­drop prosecution precluded prosecutors from dismissing criminal charges in otherwise viable cases where the victim was not interested in participating in or opposed to prosecution. No-­drop policies ranged from “soft” no-­drop, where victims were encouraged, but not forced, to participate in prosecution and given resources to make participation possible, to “hard” no-­drop, where victims were compelled to testify, when necessary through the use of subpoenas, body attachments (orders to seize a person and bring her before the judge issuing the writ) or arrest warrants, and, in the most extreme cases, imprisonment. In 1981, the Center for Women and Policy Studies (CWPS) published a report advocating that prosecutors adopt hard no-­drop policies in domestic violence cases. Some controversy existed as to whether the CWPS was a feminist organization or merely an organization posing as feminist to secure funding.23 Nonetheless, the report was written from an explicitly feminist perspective, relying on the patriarchal narrative of domestic violence and Lenore Walker’s theories to justify its recommendation.24 Feminist prosecutors like Cheryl Hanna later defended the implementation of hard no-­drop policies to combat male domination and to promote equality for all women (at



Unintended Consequences of Domestic Violence Criminalization

131

the expense of the autonomy of individual women who might not want to participate in prosecution).25 As a result of these two policy initiatives, arrest and prosecution rates increased in domestic violence cases.26 But that general statement obscures some more complicated realities. Although rates of domestic violence have fallen since the inception of these policies, those declines track the general decrease in the overall crime rate in the United States from 1994 to 2000. From 2000 to 2010, rates of domestic violence fell less than the decrease in the overall crime rate,27 despite the provision of hundreds of millions of VAWA dollars to police, prosecutors, and courts. In jurisdictions with mandatory arrest, arrest rates increased, but conviction rates did not.28 By 1996, two-­thirds of prosecutors had adopted some form of no-­ drop prosecution policy, though the policies varied significantly. At least one study suggests that the majority of prosecutors have not adopted hard no-­drop policies.29 Nonetheless, women around the country continue to be subpoenaed, arrested, and imprisoned for failure to participate in prosecution; it may be that prosecutors’ offices are using hard no-­drop tactics without labeling their policies as such. Although official reports show that rates of domestic violence are decreasing, because domestic violence remains an underreported crime, no “true” picture exists of the overall rate of domestic violence or the arrest or prosecution rate relative to that overall rate. Over time, many jurisdictions have moved away from mandatory arrest and toward preferred-­arrest policies, giving police back some of the discretion they lost under a mandatory-­arrest regime. Although mandatory-­ arrest policies have existed in some jurisdictions for many years, advocates in those same jurisdictions have argued that those policies have never been fully implemented and that police still fail to respond appropriately to domestic violence calls.30 As a result, establishing whether these laws and policies have been successful in decreasing domestic violence is difficult to measure. But if success is determined by the ability to engage policymakers in passing and financially supporting laws, the criminalization of domestic violence has been an overwhelming success. Mandatory-­or preferred-­arrest laws or policies exist in every state. Prosecutors in dedicated domestic violence units bring cases at much higher rates than they did prior to 1994,

132

Leigh Goodmark

bolstered by funding from the Violence Against Women Act, which pours hundreds of millions of dollars into police, prosecutors, and courts each year. The criminalization of domestic violence is now firmly entrenched in American society. Suggestions that mandatory-­arrest laws or aggressive prosecution be reconsidered are met with horror and accusations that such actions would move domestic violence back to the private sphere, leaving women subjected to abuse to suffer behind closed doors, as they did in the “bad old days.” But the criminalization of domestic violence has had a number of unintended consequences for the women it was meant to benefit. Those unintended consequences, both individual and systemic, are significant enough to call the value of the domestic violence movement’s carceral feminism into question.

The Unintended Consequences of Carceral Domestic Violence Reforms The success of the domestic violence movement’s carceral feminist strategy and its swift adoption by legislatures and law enforcement have had grave consequences for individual women subjected to abuse. Those consequences have, by and large, been unintended, and feminist advocates and policymakers have fought many of them as they have arisen. Feminist activists engaged with the state believing that they could harness the power of law enforcement, but, as Mimi Kim notes, “the naïve belief that feminists could indeed control the state, and the blinding success of its initial actions created conditions that would eventually lead to the subordination of the movement to its former targets, the criminal justice system.”31 The unintended consequences that have arisen as a result of this attempt to harness the power of law enforcement were a foreseeable result of the carceral feminist response to domestic violence championed by governance feminists. Those consequences include increased arrest and incarceration of women; negative outcomes for immigrant women and mothers; deprivation of criminal defenses like “stand your ground”; the usurpation of women’s agency; an inability or unwillingness of the DV movement to engage in broader social justice coalitions; unintentional support for racist policies and practices; and a failure to address the structural factors that create and exacerbate domestic violence. Each will be discussed in turn below.



Unintended Consequences of Domestic Violence Criminalization

133

Arrest and Incarceration of Women Subjected to Abuse The emphasis on arrest and prosecution, and particularly the adoption of no-­drop policies (either formally or as a matter of practice), has had one truly ironic unintended consequence: the arrest and incarceration of women subjected to abuse for their failure to assist the criminal justice system. For example, Sheila Kimball, of Kennebec County, Maine, was brought before a judge in the fleece pajamas she was arrested in and sentenced to twenty-­four hours in jail for her failure to testify against her husband. Kimball was the second woman in eight months imprisoned in cases involving prosecutor Maeghan Maloney, who asked that the women be arrested for their failure to honor subpoenas issued by her office.32 Margo Batsie, program coordinator for the Maine Coalition to End Domestic Violence, supported the decision to imprison the women pending trial, stating, “We really walk a fine line between advocating for the victim and really ensuring community safety.” She continued: “We do want batterers to be held accountable for their actions. That’s the way for a safer community; that’s the best for everyone.”33 Judge Ben McFarlin, who sits on the domestic violence docket in Murfreesboro, Tennessee, regularly issues material-­witness subpoenas in domestic violence cases and jails those who fail to appear. McFarlin describes the practice as “tough love, but it’s worth saving the life of a victim.”34 Other women are charged with and convicted of substantive crimes when they testify inconsistently with statements made at the time of the incident. When Deborah Harper of Barstow, California, denied that her boyfriend had beaten her during his trial, prosecutor Sean Daugherty filed a perjury case against her; Harper was sentenced to 365 days in jail for recanting her story. Daugherty explained that the need for truthful testimony trumped any concern he might have for the victim of violence.35 Moreover, the drive to increase arrests in domestic violence cases has also led to a significant uptick in the number of women arrested for domestic violence offenses, whether because they were the primary aggressors or because they were defending themselves or their children against violent partners. In fact, the increase in arrest rates after the inception of mandatory-­arrest laws can be at least partially attributed to the arrests of women.36 Rates of arrest of women increased

134

Leigh Goodmark

significantly in jurisdictions with mandatory-­a rrest statutes; at least some of that increase “is directly attributable to the implementation of mandatory arrest policies and not simply an increased use of violence by women in intimate relationships.”37 Women subjected to abuse use violence against their partners for a number of reasons, both defensively and out of frustration or anger. Most often, though, women use violence to protect themselves or their children or to prevent an attack.38 Responding officers may nonetheless mischaracterize defensive injuries (a bite mark, scratches) as indications that the woman subjected to abuse has been the primary aggressor. Sometimes, women are arrested because police see injuries on both parties or hear conflicting stories and refuse to make a determination as to who the primary aggressor was, deciding instead to arrest both parties and let the criminal justice system sort it out. Some officers see dual arrest as beneficial to women subjected to abuse, explaining that arrests provide safety and motivate women to seek help.39 But women subjected to abuse experience arrest as “traumatizing, degrading, and shocking” and are “confused, offended, and surprised by the fact that they were arrested.” 40 Mandatory arrest has also led to an increase in the number of adolescent girls being charged with assault. Because domestic violence laws frequently cover relationships between blood relatives, mandatory-­and preferred-­arrest laws apply when minors assault their parents.41 Often, these girls have been abused by their parents; as one attorney explains, “Some girls have been abused all their lives. . . . Finally, they get to an age where they can hit back. And they get locked up.” 42 The goal of mandatory-­arrest and no-­drop policies was to increase the likelihood that abusers would be held accountable for their actions through the criminal justice system. Having women subjected to abuse arrested and incarcerated for their choices not to prosecute may not have been what the battered women’s movement intended when it advocated for such policies, but it has certainly been a consequence of the policies for which carceral feminists lobbied.

Consequences for Immigrant Women The consequences of criminal justice intervention can be devastating both for immigrant women subjected to abuse and for their partners, particularly when the parties are undocumented. Given the increased



Unintended Consequences of Domestic Violence Criminalization

135

involvement of local law enforcement in policing violations of federal immigration law (most notably through the Secure Communities program),43 calling the police can jeopardize an undocumented woman’s ability to remain in the United States and thus expose her to economic insecurity, separation from her children, and violence in her country of origin.44 In September 2010, for example, police were called to the home of Maria Perez-­R ivera, an undocumented woman who had been beaten repeatedly by her boyfriend, Vicente Tellez. Police arrested both parties, took them to jail, fingerprinted them, and sent the fingerprints to Immigration and Customs Enforcement (ICE). Two days later, both Perez-­R ivera and Tellez were deported to Mexico, leaving their two small children in the United States.45 The failure of police to identify a primary aggressor and the accompanying increase in the likelihood of dual arrest leaves undocumented women vulnerable to deportation when they call police for assistance. Immigrant women face an equally troubling set of concerns when their partners are arrested. A number of deportable offenses, among them crimes involving intimate partner violence, were added to federal immigration law in 1996.46 Although feminists were not involved in drafting or advocating for those provisions, some feminists have subsequently argued that those changes make women subjected to abuse by those men safer, creating significant separation between the parties by way of deportation.47 But immigrant women may rely on their partners for economic assistance, co-­parenting, or other forms of support, support that disappears when those partners are deported. Not surprisingly, immigrant women are more likely to seek assistance through community services and networks than to call police or engage with the criminal justice system.48 The fear of increased law enforcement involvement in immigrant communities has made battered immigrant women less safe, as immigrant communities have become more insular and isolated.49

Mothers Subjected to Abuse The carceral feminist bent of domestic violence law and policy has had serious unintended consequences for mothers subjected to abuse. The criminalization of domestic violence (and the belief that criminal justice interventions prevent further violence) has both created expectations that women will turn to the criminal justice system for assistance

136

Leigh Goodmark

and justified penalizing them when they fail to do so. The belief in the infallibility of the criminal justice system has spurred the state to take punitive action against mothers subjected to abuse when they fail to ask the state to intervene in their relationships. Mothers are charged both civilly and criminally with failure to protect their children from their partners’ abuse in cases where children are exposed to their mothers being abused and in situations where children are directly harmed by their mothers’ abusive partners. In the 1990s, responding to research showing the negative impact that exposure to domestic violence could have on children, child protection agencies began to intervene in families where mothers were experiencing domestic violence. Mothers were required to leave their relationships to avoid further state intervention (usually without being offered any assistance, economic or otherwise, to make it possible for them to do so) and were deemed neglectful for their “failure to protect” their children from domestic violence. Child welfare agencies justified these actions by claiming that simply being in homes where abuse occurred was detrimental to children’s well-­being, often without making the individualized showing of harm or potential harm to the child required by most state dependency statutes.50 Ironically, some mothers charged with failure to protect did seek assistance from police and civil courts. This issue was raised in Nicholson v. Williams,51 a landmark case finding that New York’s child welfare law labeling mothers neglectful for engaging in domestic violence when they were assaulted in the vicinity of their children was unconstitutional. Several of the named plaintiffs had contacted police and sought protective orders; the issue for many of the plaintiffs in Nicholson was the failure of law enforcement to act when specifically asked to do so. Feminist lawyers and advocates fought the increasing use of failure-­to-­protect statutes to hold mothers accountable for their partners’ violence but often found their clients blamed for not using the separation-­based tools that feminists championed, including civil protection orders, police intervention, and prosecution, to distance themselves and their children from their abusers. By the 1980s, prosecutors also sought to hold mothers criminally accountable when their abusive partners harmed their children. Using what are sometimes called “child abuse by omission” laws, parents are deemed responsible for abuse that occurs as a result of their failure to



Unintended Consequences of Domestic Violence Criminalization

137

act. Originally passed to address situations like a parent’s failure to feed a child, causing starvation, the laws were quickly applied in the cases of women whose children were harmed by another parent or caregiver. Many of those women were being abused by the same person who hurt their children, but few of the laws permit a defense for parents who fear that they will be harmed if they attempt to stop the abuse. In some cases, abused mothers who were unable to prevent their partners from harming their children served sentences roughly equivalent to those of their partners; in others, the sentences are grossly disproportionate. In one example of this disproportionality, Robert Braxton pled guilty to breaking a baby’s toe, femur, and seven ribs and was sentenced to two years of incarceration. The baby’s mother, Tondalao Hall, pled guilty to failing to intervene on the child’s behalf and was sentenced to thirty years of imprisonment.52 Some mothers hesitate to call police because calling law enforcement might make the violence worse, particularly given how few men who abuse are arrested, prosecuted, or serve any significant period of incarceration for their actions. Daniel Pedraza abused Victoria Pedraza and her daughter, Aubrina Coke, over a weekend in February 2012. Aubrina died shortly thereafter, and both Pedrazas were arrested and charged with murder; prison officials found bruises on Victoria Pedraza’s legs and buttocks when she was booked into jail. Victoria Pedraza pled guilty to permitting child abuse, a felony in Arkansas, and was sentenced to twenty years of imprisonment. When asked during her sentencing hearing why she had not called the police during that weekend of abuse, she explained, “I was scared to death of Daniel. I felt that if I interfered in a way, like, to call law enforcement, it would make things worse. Of course he probably would have went to jail. He probably would have got bonded out and he was coming right back. That’s the fear I had.”53 This fear of involving law enforcement creates situations where mothers are trapped, with few options for protecting themselves and their children. Even when women’s fears regarding risks to their own safety or the safety of their children if they choose to engage law enforcement are well founded, mothers are punished harshly when they fail to make that call. The issue of when and how the state should intervene to safeguard children when mothers are abused is a difficult one. Certainly the state has a responsibility for protecting children and the right to intervene

138

Leigh Goodmark

both civilly and criminally when adults are responsible for harm to children. And choices have consequences; when mothers subjected to abuse choose not to engage law enforcement, intervention by the civil and criminal justice systems can be a consequence of that choice. But the criminal punishment meted out to mothers whose partners abuse their children should not exceed that of the person who actually harms the child. The state should not assume that the intervention of the criminal justice system is the best or safest option for every mother subjected to abuse and her children and should not remove children from their mothers’ care based solely on the failure to seek assistance from police or courts. And to the extent that the state does these things, carceral feminism bears some responsibility. Carceral feminism insisted upon the efficacy of the criminal justice system and made the case that the criminal system was the best way to protect women subjected to abuse and their children, without either proving the system’s effectiveness or considering the many people for whom the system did not provide assistance or support. Carceral feminists institutionalized and normalized the use of the criminal justice system to address domestic violence. Women who deviate from that norm are punished for doing so, even when those women have good reason to believe that the system will not help them or when they cannot find ways to engage the system. Carceral feminism’s insistence on the primacy and effectiveness of the criminal justice response has had the unintended consequence of penalizing mothers who question whether those systems can really keep them safe.

Deprivation of Criminal Defenses The assumption that women subjected to abuse must turn to law enforcement to protect themselves and their children may also be depriving them of the right to avail themselves of defenses that would otherwise be available to them in criminal trials. Defendants in two recent high-­profile cases in Florida have used the “stand-­your-­g round” defense, for example, with radically different degrees of success. Stand-­your-­ground laws generally allow a person to use deadly force in self-­defense without requiring that the person attempt to retreat to safety first. George Zimmerman famously deployed the stand-­your-­ ground defense to win acquittal after murdering Trayvon Martin on a public street, a male-­on-­male, white-­on-­black crime committed



Unintended Consequences of Domestic Violence Criminalization

139

by a self-­appointed neighborhood defender.54 But Marissa Alexander’s attempt to use the stand-­your-­ground defense in the context of domestic violence was rejected by a Florida jury. Alexander was found guilty and sentenced to twenty years of imprisonment for aggravated assault after firing a single gunshot into the ceiling of her home to protect herself from her abusive ex-­husband.55 In South Carolina, prosecutors have argued that the stand-­your-­ ground defense should not apply at all in cases involving domestic violence. They contend that using stand-­your-­ground laws in situations involving intimate partner violence is inconsistent with the law’s intent.56 The reluctance to apply stand-­your-­ground laws to situations involving intimate partner abuse may stem from the belief that an appropriate and effective intervention—­calling law enforcement—­already exists for victims of domestic violence, and that women who fail to use that remedy do not deserve to benefit from stand-­your-­ground laws. While the efficacy and morality of stand-­your-­g round laws may be questionable, to the extent that they exist, they ought to be available to all citizens equally. People subjected to abuse are being denied the protection (however dubious) of such laws because they are expected to turn to the carceral system.

Usurpation of Women’s Agency Mandatory-­a rrest and hard no-­d rop prosecution policies have long substituted the state’s judgment about the optimal intervention in a case involving domestic violence for that of women who are uninterested, for whatever reason, in becoming involved with the criminal justice system. More recent programs, like High Point, North Carolina’s Offender-­Focused Domestic Violence Initiative, similarly cast the state in the dominant role. In the High Point program, after the preliminary response to the DV complaint, police visit the aggressor within forty-­eight hours, regardless of whether an arrest has been made. Police inform the aggressor that he has been placed on a watch list. Subsequent domestic violence offenses can bring additional warnings from police and a requirement that the offender meet with a panel of police, prosecutors, and members of the community. Strikingly absent from this process is the offender’s partner. That absence is by design. Offenders are told that the police will continue to aggressively monitor the couple “regardless of

140

Leigh Goodmark

whether the offender’s victim plays an active role in any future case or seeks to stay out of it.”57 David Kennedy, director of the National Network for Safe Communities, whose goals include minimizing arrest and incarceration, developed the approach. He explains, “We wanted to be able to say to the offender, ‘You’re dealing with us, you’re not dealing with her.’”58 While Kennedy contends that women appreciate being kept out of these interactions, no women subjected to abuse were quoted in the news story describing the program. Feminist critics, including domestic violence researcher Jacqueline Campbell and Barbara Hart, a longtime legal advocate and survivor of domestic violence, raised concerns about the failure to address domestic violence in other (higher-­income) communities. Walter DeKeseredy, another prominent feminist anti-­v iolence researcher, questioned the value of using recidivism as a measure of determining whether a project was successfully deterring further violence. No one, however, was quoted as attacking the assumption that victims of violence should not have a voice in this process.59 Feminist advocacy for, and the broad acceptance of, Lenore Walker’s theories, particularly battered woman syndrome, by courts, legislatures, and law enforcement continues to negatively inform domestic violence policy development. The message that is sent by mandatory policies is that women subjected to abuse are incapable of making decisions about whether the state should intervene in their intimate relationships and that authority for those decisions should therefore be ceded to the state. This diminution of women subjected to abuse is consistent with prevailing but outdated stereotypes of victims of domestic violence as weak, passive, and unable to extricate themselves from their relationships without the intervention of the state. Such policies send the normative message that relationships that involve domestic violence are valueless and should be terminated, and that women who want, for whatever reason, to continue those relationships are irrational and aberrant. Moreover, these policies silence women altogether, making them irrelevant to the criminal justice process (unless they, too, are arrested). The actions of Maryland’s Court of Special Appeals in Lambert v. State60 underscore this point. Lambert pled guilty to second-­degree assault after pushing his wife (referred to only as “Mrs. Lambert” in the court’s ruling) down the stairs in the couple’s home. Although Mrs.



Unintended Consequences of Domestic Violence Criminalization

141

Lambert did not appear at sentencing, she sent the court a letter explaining that she did not fear Mr. Lambert and wanted to seek counseling with her husband and reconcile. The trial court judge, who before taking the bench had been involved as an attorney in a case in which a victim of domestic violence died, sentenced Lambert to three years of supervised probation and imposed a special condition—­t hat Mr. Lambert have no contact with Mrs. Lambert during that three-­year period. On appeal, Mr. Lambert challenged the no-­contact provision as an unconstitutional burden on his right to marriage. The Court of Special Appeals rejected this argument, finding that the state had a “compelling interest in securing Mrs. Lambert’s safety from yet another incident of domestic violence at the hands of appellant.” 61 Mrs. Lambert was denied the right to file an amicus brief putting forth her own arguments as to why the no-­contact order violated her right to determine whether she wanted continued contact with Mr. Lambert. And the Court did not address any constitutional or other rights she might have had to object to the order. Beyond mentioning Mrs. Lambert’s letter, the Court of Special Appeals completely ignored Mrs. Lambert’s clearly expressed desire to repair her marriage, essentially finding that the state’s interest in protecting her outweighed her own assessment of her safety and the viability of her relationship. Feminists’ response to the Lambert decision was mixed. Dorothy Lennig of the House of Ruth, Maryland’s largest domestic violence organization and a powerful force in Maryland domestic violence law and policy, hailed the decision as an appropriate use of state power to protect a victim of domestic violence. Feminists who supported intervention on Mrs. Lambert’s behalf saw the ruling as disempowering and a potential disincentive to seeking assistance. L. Tracy Brown of the Women’s Law Center of Maryland, a feminist advocacy organization, called the case “difficult” and an example of why “a nuanced and sensitive approach that addresses all the competing priorities” is necessary in domestic violence cases.62 But Lambert was a clear win for carceral feminists and an indication of how pervasive the carceral feminist perspective has become among the Maryland judiciary. Ultimately, Lambert resulted in what Jeannie Suk has called “de facto divorce”—­t he use of the criminal stay away order to end the Lamberts’ relationship, at least during the three years of the husband’s probation.63

142

Leigh Goodmark

Policies that delegate decision-­making authority to the state were intended to relieve people subjected to abuse of the burden of having to ask police to make an arrest. They were intended to enable people to claim that their participation in the criminal system was beyond their control and remove the potential that abusive men would coerce their partners into dropping charges or declining to testify. But the unintended consequence of these policies has been to deprive women of the power to determine how to govern their relationships once abuse has occurred.

Hampering Broader Social Justice Work Feminists’ commitment to carceral DV reforms have had the unintended consequence of distancing the anti-­DV movement from communities of color and others working toward broader social justice goals. Domestic violence advocates routinely align themselves with criminal justice interests in legal and policy disputes. In Maryland v. King, for example, the Supreme Court considered whether Maryland’s practice of collecting DNA from those who had been arrested but not convicted violated the Fourth Amendment. Amici, opposed to the policy, argued that, given that people of color were more likely to be arrested, the policy would be used disproportionately against minority groups; moreover, the existence of the policy could serve as an incentive for pretextual stops and arrests. Domestic violence organizations, however, aligned themselves with law enforcement, citing the potential for solving rape cases through the wider collection of DNA. The briefs joined by the domestic violence organizations did not raise concerns about the racial implications of the policy or urge that the policy be carried out in a race-­neutral manner.64 Most recently, anti-­v iolence advocates have remained silent as Congress has moved to increase the penalties for interstate domestic violence. A coalition of groups across the political spectrum has advocated for a reduction in the use of mandatory minimum sentences, citing concerns ranging from the overincarceration of people of color to the high cost of incarceration. Legislation brought before Congress, including the Sentencing Reform Act of 2015 and the Sentencing Reform and Corrections Act, would have cut mandatory minimum sentences for a number of nonviolent federal crimes. But these bills have increased



Unintended Consequences of Domestic Violence Criminalization

143

the mandatory minimum sentence for crimes of interstate domestic violence, notwithstanding the lack of evidence supporting the effectiveness of incarceration as a response to domestic violence. The anti-­DV movement did not advocate for more stringent sentences, but it has not protested the increased use of mandatory sentencing in domestic violence cases or publicly supported the bills’ broader goal of cutting mandatory minimums. Instead, it has sat silently by while other progressive movements work to end hyperincarceration. By contrast, at least one domestic violence organization supported the predecessor to these bills, the Smarter Sentencing Act of 2014—­but only to enhance the carceral feminist response to domestic violence. The Act would have reduced mandatory sentences for a number of crimes, including drug offenses. But amendments to the Act offered by Senator Charles Grassley would also have created mandatory minimum sentences for federal sex abuse crimes (five years) and interstate domestic violence resulting in the death of the victim (ten years). The National Task Force to End Sexual and Domestic Violence against Women, a coalition of domestic and sexual violence and women’s rights groups, based its support for the Act on a number of factors: the benefit to women subjected to abuse who “become entangled in non-­violent drug crimes through the coercive and abusive actions of others,” the disproportionate impact of mandatory minimum sentences on communities of color, and the negative impact of the burgeoning Bureau of Prisons budget on other Department of Justice programs, particularly those programs that serve “victims of domestic violence, dating violence, sexual assault, and stalking.” 65 While the National Task Force opposed Grassley’s proposed mandatory minimums, explaining that “each case and each victim’s situation is so unique, it is our opinion that the establishment of mandatory minimum sentences in these cases does not necessarily ensure the safety of victims of these crimes,” the National Task Force also argued that the savings realized through the Smarter Sentencing Act should be “reinvested directly into critical areas of need: the hiring of federal prosecutors to fill currently empty positions in order to ensure robust prosecution of domestic violence, sexual assault crimes, and stalking on Tribal lands and the restoration of funding to the programs that serve victims of domestic violence, dating violence, sexual assault, and stalking.” The National Task Force

144

Leigh Goodmark

recognized the impact of hyperincarceration on communities of color, but its letter makes clear that that impact was not what motivated the Task Force to support the legislation. Instead, the National Task Force’s support was driven by the desire to bolster federal funding for domestic violence programs, funding which largely goes to the criminal justice response. As the National Task Force wrote in its letter, “we see the passage of the [Smarter Sentencing Act] as an effective mechanism for supplementing the woefully insufficient resources to address domestic violence, sexual assault, dating violence, and stalking.” 66 While the National Task Force’s letter recognizes the damage done by mandatory minimum sentences, it simultaneously advocates for dedicating greater resources to the carceral response to domestic violence. Such stances distance the anti-­v iolence movement from other social justice initiatives, an unintended consequence of criminalization.

Consequences for Men and Women of Color Carceral feminism contributes to the hyperincarceration of men of color and is blind to the ways in which race affects women’s experiences of domestic violence and the criminal justice system. Men of color, particularly African American men, are vastly overrepresented in the criminal justice system; the criminalization of domestic violence has contributed to that overrepresentation. Women-­of-­color feminist activists warned of that result during the initial push for greater law enforcement involvement in domestic violence, to no avail;67 their concerns were overridden by the governance feminists working with legislators to craft stronger criminal laws. Given the likelihood that their partners will be arrested if they seek assistance, African American women are caught in what Beth Richie describes as a “trap of loyalty” that makes turning to the criminal justice system a fraught decision, given (1) the obligation that Black women feel to buffer their families from the impact of racism in the public sphere; (2) the pressure to live up to the expectation that they, as Black women, will be able to withstand abuse and mistreatment more than other members of their households; and (3) an acceptance of the community rhetoric that argues that Black women are in a more privileged position than are African American men (including those who abuse them).68



Unintended Consequences of Domestic Violence Criminalization

145

African American women are victimized not only by partners but also by the state systems that purport to serve them. As a result of criminalization, Beth Richie argues, “Black women from low-­income communities become isolated from mainstream services, blamed for the abuse they experience, and then sanctioned by state agencies for the harm they endured.” 69 As INCITE! Women of Color Against Violence has long argued, violence by police against African American women is endemic, and women of color who report domestic violence have frequently been targeted by police.70 Women of color have also been skeptical about the ability of courts to provide protection for them. As one activist explained, “White women talked more as if the courts belonged to us [all women] and therefore should work for us where we [women of color] always saw it as belonging to someone else and talked more about how to keep it from hurting us.”71 White feminists failed to anticipate just how damaging the carceral feminist response to intimate partner violence would be for communities of color.

Ignoring Structural Factors The carceral feminist response to domestic violence ignores the structural factors that create and reinforce women’s victimization and impedes creative thinking about how to address those factors. Defining domestic violence as a criminal justice issue permits policymakers and others to think narrowly about potential solutions. As a result of such blinkered thinking, U.S. law and policy disproportionately relies upon the legal system, and particularly the criminal legal system, to address domestic violence. The funding scheme in the Violence Against Women Act highlights this choice. In 2014, Congress appropriated $243 million for the STOP and Grants to Encourage Arrest Policies programs, the two largest programs funded by the Act. Both of these programs provide money primarily for police, prosecutors, and courts to “increase the apprehension, prosecution, and adjudication of persons committing violent crimes against women.”72 Additional pots of money are made available to the criminal justice system through a number of other, smaller grant programs. By contrast, Congress appropriated just under $25 million for transitional housing, despite the fact that housing is regularly listed as the greatest need identified by women subjected to abuse in surveys by the NNEDV.73

146

Leigh Goodmark

This belief, that the criminal justice system can adequately respond to domestic violence, disregards crucial structural factors. Turning to the criminal justice system allows policymakers to ignore the interplay of economics and domestic violence, for example. Although the battered women’s movement has always stressed that domestic violence happens to all women, rates of domestic violence are significantly higher among low-­income women.74 Male unemployment positively correlates with higher rates of domestic violence, as does the level of neighborhood disadvantage. Criminalization does nothing to address the economic factors that drive domestic violence; in fact, hyperincarceration exacerbates economic tension and helps to create the social conditions that are linked to higher rates of domestic violence in disadvantaged neighborhoods. For some women, criminalization may be driving rather than addressing domestic violence, certainly an unintended consequence of carceral feminism.

Beyond Criminalization A growing chorus of feminist anti-­v iolence advocates is calling for a shift away from criminalization in domestic violence law and policy. By the early 2000s, feminist advocates for battered women, including Donna Coker and Holly Maguigan, were questioning the propriety of mandatory arrest and no-­drop prosecution.75 In 2003, the Ms. Foundation for Women convened a conference that asked the following questions: “What . . . is the appropriate role of the state and, in particular, the criminal legal system in preventing violence against women? Are we over-­relying on the criminal legal system? Have we gone too far or not far enough in developing and utilizing legal strategies for addressing violence against women?” Participants concluded that “unintended negative consequences have resulted, especially from efforts aimed at reforming the criminal legal system. Such efforts have justified increasing criminalization and punitive sanctions, and not necessarily against batterers or sexual assault offenders only, as we have seen with the increased arrests of battered women.”76 Dorothy Roberts and Beth Richie are advocates for prison abolition.77 Aya Gruber has argued that feminists should no longer advocate for or support the criminalization of domestic violence.78 I have called for non-­state-­based justice forums for those women who do not want to use state-­based systems.79



Unintended Consequences of Domestic Violence Criminalization

147

These alternatives put forward by feminists share a number of attributes. First, to varying degrees, they share a commitment to moving away from a retributive response to domestic violence. Although the mainstream battered women’s movement continues to look askance at processes that bring women and their partners together to attempt to address violence, some feminist anti-­violence scholars, including Coker and Angela Harris, have come to believe that restorative justice may hold promise,80 particularly for those women who plan to continue their relationships with their partners, are co-­parenting, or live in small communities where they will necessarily interact with their partners. Restorative justice attempts to repair harms (not punish crimes) by bringing victims and offenders together to engage in dialogue around the harm, assess the impact of the harm on the victim, and determine how to ensure offender accountability and address the victim’s needs, using restorative dialogue circles, victim/offender mediation, and truth commissions. Restorative justice puts power into women’s hands: the power to determine whether restorative processes are appropriate, to confront their partners, to have their partners admit responsibility for their actions, and to seek reparations. Restorative justice honors the humanity of men who abuse, recognizes that men who abuse can change their behaviors, and provides support for them as they take responsibility for their choices and are restored to their communities. Restorative processes also engage the community in condemning the harms inflicted and provide community support for victims who may previously have been isolated and for perpetrators seeking to change their behavior.81 Any alternative to criminalization should shift power back to women subjected to abuse. Since the inception of criminal justice reforms in domestic violence, the state has had the power to determine whether an arrest is made, whether a prosecution goes forward, whether a woman will be compelled to testify, and whether she will be permitted to have contact with her intimate partner both before and after prosecution, with no requirement that the state consider, let alone honor, the woman’s views on any of these issues. This allocation of power to the state was premised on stereotypes of women subjected to abuse as weak, meek, coerced and unable to exercise agency, derived from battered woman syndrome, stereotypes that may fit some women but certainly do not fit many others and do not justify the wholesale

148

Leigh Goodmark

usurpation of choice around whether and how women should continue their intimate relationships or interact with the criminal justice system. Women should not need to prove that they have extricated themselves from their relationships or otherwise escaped the coercive control of their partners (as battered woman syndrome would suggest) before they are trusted to make decisions about their lives. Alternatives to criminalization should pay particular attention to the impact of those policies on women of color, women whose concerns were ignored by carceral feminists. In her book Arrested Justice: Black Women, Violence, and America’s Prison Nation, Beth Richie lays out a violence matrix that describes the continuum of abuse that women experience. That matrix describes abuse on the intimate, community, and state levels. The matrix links the physical, sexual, and emotional abuse of black women by state actors and through public policy to abuse at the hands of black women’s partners.82 Any policy shift should pay careful attention to the potential of those policies to contribute to continued abuse by state and community actors. Domestic violence policy should focus on structural factors, particularly the economic conditions that drive both hyperincarceration and domestic violence. Domestically, chronic unemployment and economic uncertainty undermine traditional notions of masculinity and call into question gender norms around work and responsibility for families. These trends are exacerbated by globalization, which has driven the loss of manufacturing jobs. As Deborah Weissman has argued, “Global economic conditions must be understood as conditions contributing to violence against women.”83 Notwithstanding its numerous unintended negative consequences, moving away from criminalization raises concerns among carceral feminists about abandoning forty years of hard-­fought “gains” in domestic violence law and policy.84 But searching for alternatives to criminalization is not the same as abandoning those policies altogether—­ the goal is rather to determine whether, when, and for whom criminalization is an effective response to domestic violence and to promote alternatives for those for whom criminalization has failed. Moreover, moving away from criminalization could free significant resources that are now being channeled into the criminal justice system, resources that could fund other alternatives that speak directly to the needs of women subjected to abuse and their partners. A similar



Unintended Consequences of Domestic Violence Criminalization

149

phenomenon is occurring in the realm of drug policy, where decriminalization in California has permitted the state to divert resources that once went to prisons into innovative community-­based treatment programs.85 In September 2014, Attorney General Eric Holder highlighted the harms associated with the War on Drugs, stating, “For far too long, our system has perpetuated a destructive cycle of poverty, criminality and incarceration that has trapped countless people and weakened entire communities—­particularly communities of color.”86 The same could be said of the criminalization of domestic violence. Now is the time to reconsider, and to reject, the carceral feminist response to domestic violence.

Notes 1. In its Fiscal Year 2016 budget submission, the Office on Violence against Women (OVW) requested $243 million for its two largest criminal justice grant programs: $193 million for STOP grants and $50 million for the Grants to Encourage Arrests Program. OVW also requested funds for other programs that fund the criminal justice system. U.S. Department of Justice, FY 2016 Congressional Budget Submission: Office on Violence against Women (February 2015), 7–­8, http://www.justice​ .gov/sites/default/files/jmd/pages/attachments/2015/02/02/30._office_on_violence­​ _against_women_ovw.pdf. These amounts are consistent with past appropriations under VAWA. 2. Elizabeth Bernstein, “Militarized Humanitarianism Meets Carceral Feminism: The Politics of Sex, Rights, and Freedoms in Contemporary Antitrafficking Campaigns,” Signs: Journal of Women in Culture and Society 36, no. 1 (2010): 45–­71. 3. Cheryl Hanna, “No Right to Choose: Mandate Participation in Domestic Violence Prosecutions,” Harvard Law Review 109, no. 8 (1996): 1849–­910; Yolanda Jimenez, “Mandatory Prosecution Puts the Burden Rightly on the State,” New York Times, September 10, 2014; Dorothy Lennig, “Punishing the Victims of Domestic Violence,” Baltimore Sun, October 22, 2015; Ayonna Johnson, “Treat Domestic Violence like the Crime It Is,” New York Times, September 11, 2014; Charlie Stoops, “Mandatory Prosecutions Wouldn’t Change Violent Behavior,” New York Times, September 11, 2014. 4. Susan Schechter, Women and Male Violence: The Visions and Struggles of the Battered Women’s Movement (Boston: South End Press, 1982), 29–­43. 5. Ibid., 91, 107–­8. 6. Ibid., 138. 7. Ibid., 137. 8. “History,” National Network to End Domestic Violence, http://nnedv.org​ /about/history.html. 9. Mary Ann Dutton, Empowering and Healing the Battered Woman: A Model for Assessment and Intervention (Berlin: Springer Publishing, 2000), 28; David L.

150

Leigh Goodmark

Faigman, “The Battered Woman Syndrome and Self-­Defense: A Legal and Empirical Dissent,” Virginia Law Review 72, no. 3 (1986): 619–­48; Holly Johnson, “The Cessation of Assaults on Wives: A Study of Domestic Violence against Women,” Journal of Comparative Family Studies 34, no. 1 (2003): 75–­91; Melanie Randall, “Domestic Violence and the Construction of ‘Ideal Victims’: Assaulted Women’s ‘Image Problems’ in Law,” St. Louis University Public Law Review 23, no. 1 (2004): 107–­54. 10. Lenore Walker, The Battered Woman (New York: William Morrow Paperbacks, 1979). 11. William L. Hart et al., Attorney General’s Task Force on Family Violence: Final Report (Washington, D.C.: U.S. Department of Justice, 1984). Preferred-­ arrest policies strongly encourage police to make arrests in cases involving domestic violence whenever they have probable cause to do so, but do not require them to do so. 12. Claire Houston, “How Feminist Theory Became (Criminal) Law: Tracing the Path to Mandatory Criminal Intervention in Domestic Violence Cases,” Michigan Journal of Gender and the Law 21, no. 2 (2014): 217–­72. 13. Mimi Kim, “Dancing the Carceral Creep: The Anti–­Domestic Violence Movement and the Paradoxical Pursuit of Criminalization, 1973–­1986” (2015), 1–­27, unpublished article available online at http://escholarship.org/uc/item/804227k6. 14. Thurman v. City of Torrington, 595 F. Supp. 1521 (D. Conn. 1985). 15. Lawrence W. Sherman and Richard A. Berk, “The Specific Deterrent Effects of Arrest for Domestic Assault,” American Sociological Review 49, no. 2 (1984): 261–­72. 16. Richard A. Berk, Alec Campbell, Ruth Klap, and Bruce Western, “A Bayesian Analysis of the Colorado Springs Spouse Abuse Experiment,” Journal of Criminal Law and Criminology 83, no. 1 (Spring 1992): 170–­200; Franklyn W. Dunford, “System-­Initiated Warrants for Suspects of Misdemeanor Domestic Assault: A Pilot Study,” Justice Quarterly 7, no. 4 (1990): 631–­53; Franklyn W. Dunford, David Huizinga, and Delbert S. Elliott, “The Role of Arrest in Domestic Assault: The Omaha Police Experiment,” Criminology 28, no. 2 (1990): 183–­206; Joel Garner, Jeffrey Fagan, and Christopher Maxwell, “Published Findings from the Spouse Assault Replication Program: A Critical Review,” Journal of Quantitative Criminology 11, no. 1 (1995): 3–­28; J. David Hirschel, Ira W. Hutchinson III, and Charles W. Dean, “The Failure of Arrest to Deter Spouse Abuse,” Journal of Research in Crime and Delinquency 29, no. 1 (1992): 7–­33; Anthony M. Pate and Edwin E. Hamilton, “Formal and Informal Deterrents to Domestic Violence: The Dade County Spouse Assault Experiment,” American Sociological Review 57, no. 5 (October 1992): 691–­97. 17. Domestic Violence: Not Just a Family Matter: Hearing before the House Committee on the Judiciary, 103rd Cong., 2nd Sess. 55 (1994) (testimony of Joan Zorza, senior attorney, National Battered Women’s Law Project of the National Center on Women and Law). 18. Ibid. 19. Ellen L. Pence and Melanie F. Shepard, “An Introduction: Developing a ­C oordinated Community Response,” in Coordinating Community Responses to Domestic Violence: Lessons from Duluth and Beyond (Thousand Oaks, Calif.: Sage Publications, 1999), 7.



Unintended Consequences of Domestic Violence Criminalization

151

20. Brenda V. Smith, e-­mail message to Leigh Goodmark, June 29, 2015. 21. Katrina Castillo, Alexandra Spratt, Catherine Longville, and Leslye E. Orloff, Legislative History of VAWA (94, 00, 05), T and U-­Visas, Battered Spouse Waiver and VAWA Confidentiality (Washington, D.C.: NIWAP, 2015), 2. 22. Mimi E. Kim, “The Mainstreaming of the Criminalization Critique: Reflections on VAWA 20 Years Later,” CUNY Law Review Footnote Forum (November 21, 2014), http://www.cunylawreview.org/vawa-20-the-mainstreaming-of-the-crimi​ nalization​-critique-reflections-on-vawa-20-years-later-by-mimi-kim/. 23. Houston, “How Feminist Theory Became (Criminal) Law,” 263–­64. 24. Ibid., 264–­65. 25. Hanna, “No Right to Choose,” 1849. 26. Alesha Durfee, “Situational Ambiguity and Gendered Patterns of Arrest for Intimate Partner Violence,” Violence against Women 18, no. 1 (2012): 64–­8 4; Barbara E. Smith and Robert C. Davis, An Evaluation of Efforts to Implement No-­Drop Policies: Two Central Values in Conflict (Washington, D.C.: U.S. Department of Justice, 2001). 27. Shannan Catalano, Intimate Partner Violence, 1993–­2010 (Washington, D.C.: Department of Justice, 2012), 1. 28. David Hirschel, Eve Buzawa, April Pattavina, Don Faggiani, and Melissa Reuland, Explaining the Prevalence, Context, and Consequences of Dual Arrest in Intimate Partner Cases (Washington, D.C.: U.S. Department of Justice, 2007), xiii. 29. Chris S. O’Sullivan, Robert C. Davis, Donald J. Farole Jr., and Michael Rempel, “A Comparison of Two Prosecution Policies in Cases of Intimate Partner Violence: Mandatory Case Filing versus Following the Victim’s Lead,” Criminology & Public Policy 7, no. 4 (2008): 633–­62. 30. Paula C. Barata, “Abused Women’s Perspectives on the Criminal Justice System’s Response to Domestic Violence,” Psychology of Women Quarterly 31, no. 2 (2007): 202–­15. 31. Kim, Dancing the Carceral Creep, 24. 32. Betty Adams, “Battered Wife Jailed after Refusing to Testify against Husband,” Portland (Maine) Press Herald, June 3, 2014. 33. Ibid. 34. Larry Flowers, “Domestic Violence Victims Could Be Arrested if They Don’t Show up for Court to Face Abuser,” WSMV Channel 4 (Nashville, Tenn.), April 25, 2013. 35. Aaron Dome, “Domestic Violence Victim Gets Jail for Lying about Beating,” Desert Dispatch (Barstow, Calif.), February 18, 2011. 36. April M. Zeoli, Alexis Norris, and Hannah Brenner, “Mandatory, Preferred, or Discretionary: How the Classification of Domestic Violence Warrantless Arrest Laws Impacts Their Estimated Effects on Intimate Partner Homicide,” Evaluation Review 35, no. 2 (2011): 129–­52, at 132. 37. Durfee, “Situational Ambiguity,” 75. 38. Leigh Goodmark, “When Is a Battered Woman Not a Battered Woman? When She Fights Back,” Yale Journal of Law and Feminism 20, no. 1 (2008): 75–­130, at 92–­93.

152

Leigh Goodmark

39. Mary A. Finn, Brenda Sims Blackwell, Loretta J. Stalans, Sheila Studdard, and Laura Dugan, “Dual Arrest Decisions in Domestic Violence Cases: The Influence of Departmental Policies,” Crime and Delinquency 50, no. 4 (2004): 565–­89, at 568. 40. Melissa E. Dichter, “They Arrested Me—­And I Was the Victim”: Women’s Experiences with Getting Arrested in the Context of Domestic Violence,” Women & Criminal Justice 23, no. 2 (2013): 81–­98, at 89. 41. Human Rights Watch and ACLU, Custody and Control: Conditions of Confinement in New York’s Juvenile Prisons for Girls (New York: Human Rights Watch and ACLU, 2006), 36. 42. Meda Chesney-­Lind and Katherine Irwin, “Still ‘the Best Place to Conquer Girls’: Girls and the Juvenile Justice System,” in Women, Law and Social Control, 2nd ed., ed. Alida V. Merlo and Joycelyn M. Pollock (Upper Saddle River, N.J.: Prentice Hall, 2006), 271. 43. Secure Communities was an immigration enforcement program that required local police and jails to cooperate with Immigration and Customs Enforcement by submitting fingerprint information on all arrestees to immigration databases to determine the immigration status of the arrestee. “Secure Communities: A Fact Sheet,” American Immigration Council, http://www.immigrationpolicy.org/just-facts/secure​ -communities-fact-sheet. The Secure Communities program ended in 2014 but was replaced by the Priority Enforcement Program (PEP) in July 2015. PEP is substantially similar to Secure Communities but in theory addresses some of the issues that concerned advocates for undocumented immigrant women subjected to abuse. U.S. Immigration and Customs Enforcement, “Priority Enforcement Program,” https://www.ice.gov/pep#wcm-survey-target-id. 44. Alizabeth Newman, “Reflections on VAWA’s Strange Bedfellows: The Partnership between the Battered Immigrant Women’s Movement and Law Enforcement,” University of Baltimore Law Review 42, no. 2 (2013): 229–­76, at 248. 45. Stephen Magagnini, “Deported Mexicans Leave Two Small Kids in Lodi,” Sacramento Bee, November 2, 2010. 46. Linda Kelly, “Domestic Violence Survivors: Surviving the Beatings of 1996,” Georgetown Immigration Law Journal 11, no. 2 (1997): 303–­28. 47. Camille Carey and Robert A. Solomon, “Impossible Choices: Balancing Safety and Security in Domestic Violence Representation,” Clinical Law Review 21, no. 1 (2014): 201–­54, at 229. 48. Stavroula Kyriakakis, “Mexican Immigrant Women Reaching Out: The Role of Informal Networks in the Process of Seeking Help for Intimate Partner Violence,” Violence against Women 20, no. 9 (2014): 1097–­116; Mieko Yoshihama, Deborah Bybee, Chic Dabby, and Juliane Blazewski, “Lifecourse Experiences of Intimate Partner Violence and Help-­Seeking among Filipina, Indian, and Pakistani Women: Implications for Justice System Responses” (July 30, 2010), 1–­123, https://www.ncjrs​ .gov/pdffiles1/nij/grants/236174.pdf. 49. Pooja Gehi and Soniya Munshi, “Connecting State Violence and Anti-­Violence: An Examination of the Impact of VAWA and Hate Crimes Legislation on Asian American Communities,” Asian American Law Journal 21 (2014): 5–­42.



Unintended Consequences of Domestic Violence Criminalization

153

50. Nicholson v. Williams, 203 F. Supp. 2d 153, 170 (E.D.N.Y. 2002); Evan Stark, “Nicholson v. Williams Revisited: When Good People Do Bad Things,” Denver University Law Review 82, no. 4 (2005): 691–­722. 51. Nicholson v. Williams. 52. Alex Campbell, “Battered, Bereaved, and behind Bars,” BuzzFeed News, October 2, 2014, http://www.buzzfeed.com/alexcampbell/how-the-law-turns-battered -women-into-criminals. 53. Ibid. 54. Mary Ann Franks, “Real Men Advance, Real Women Retreat: Stand Your Ground, Battered Women’s Syndrome, and Violence as Male Privilege,” University of Miami Law Review 68, no. 4 (2014): 1099–­128. 55. Alexander’s conviction was subsequently overturned on appeal. After prosecutors said that they would seek a sixty-­year term during the retrial, Alexander pled guilty and was sentenced to three years of time served and two years of community control. Vic Micolucci, “Judge: Marissa Alexander Released to House Arrest,” News4Jax (Jacksonville, Fla.), January 27, 2015. 56. Andrew Knapp, “Prosecutors Challenge Use of ‘Stand Your Ground’ Law in Domestic Disputes at Home,” Post and Courier (Charleston, S.C.), October 12, 2014. 57. David Crary, “Better Strategies Sought to Curb Domestic Violence,” Washington Times, November 17, 2014. 58. Ibid. 59. John H. Tucker, “Can Police Prevent Domestic Violence by Simply Telling Offenders to Stop?,” IndyWeek (Durham, N.C.), November 13, 2013. 60. Lambert v. State, 61 A.3d 87 (Md. Ct. Spec. App. 2013). 61. Ibid., 90. 62. Daily Record Staff, “No-­Contact Order Trumps Victim’s Wishes,” Daily Rec­ ord (Baltimore, Md.), April 9, 2013. 63. Jeannie Suk, At Home in the Law: How the Domestic Violence Revolution Is Transforming Privacy (New Haven, Conn.: Yale University Press, 2009), 11. 64. Deborah M. Weissman and Leigh Goodmark, “We Can’t Breathe: Domestic Violence Advocacy and the Criminal Justice System,” Human Rights at Home Blog, December 9, 2014, http://lawprofessors.typepad.com/human_rights/2014/12/we​ -cant-breathe-domestic-violence-advocacy-and-the-criminal-justice-system.html. 65. National Task Force to End Sexual and Domestic Violence against Women to Senators Patrick Leahy, Richard Durbin, and Mike Lee, December 11, 2013. 66. Ibid. 67. Beth E. Richie, “A Black Feminist Reflection on the Antiviolence Movement,” Signs: Journal of Women in Culture and Society 25, no. 4 (2000): 1133–­137. 68. Beth E. Richie, Arrested Justice: Black Women, Violence, and America’s Prison Nation (New York: New York University Press, 2012), 36. 69. Ibid. 70. “Police Brutality against Women of Color and Trans-­People of Color: A Critical Intersection of Gender Violence and State Violence,” INCITE: Women of Color against Violence, http://www.incite-national.org/sites/default/files/incite_files /resource_docs/5341_pv-brochure-download.pdf; Andrea Ritchie, “Law Enforcement

154

Leigh Goodmark

Violence against Women of Color,” in Color of Violence: The INCITE! Anthology (Cambridge, Mass.: South End Press, 2006), 138–­56. 71. Ellen L. Pence and Melanie F. Shepard, “An Introduction: Developing a Coordinated Community Response,” in Coordinating Community Responses to Domestic Violence: Lessons from Duluth and Beyond, ed. Melanie F. Shepard and Ellen L. Pence (Thousand Oaks, Calif.: Sage Publications, 1999), 3–­23. 72. Garrine P. Laney, Violence Against Women Act: History and Federal Funding (Washington, D.C.: Congressional Research Service, 2005), 4. 73. National Network to End Domestic Violence, Domestic Violence Counts 2013: A 24-­Hour Census of Domestic Violence Shelters and Services (Washington, D.C.: National Network to End Domestic Violence, 2014), 1. On September 17, 2013, the day of the census, NNEDV members reported 5,778 unmet housing requests (60 percent of the total unmet requests for services). 74. Donna Coker, “VAWA at 20: Roll Back ‘Prison Nation,’” CUNY Law Review: Footnote Forum, December 18, 2014, http://www.cunylawreview.org/vawa-20-roll​ -back-prison-nation/. 75. Donna Coker, “Crime Control and Feminist Law Reform in Domestic Violence Law: A Critical Review,” Buffalo Criminal Law Review 4, no. 2 (2001): 801–­60; Holly Maguigan, “Wading into Professor Schneider’s ‘Murky Middle Ground’ between Acceptance and Rejection of Criminal Justice Responses to Domestic Violence,” American University Journal of Gender, Social Policy & the Law 11, no. 2 (2003): 427–­45. 76. Ms. Foundation for Women, Safety & Justice for All: Examining the Relationship between the Women’s Anti-­Violence Movement and the Criminal Legal System (New York: Ms. Foundation for Women, 2003), 1, 20. 77. Beth E. Richie, “Keynote—­Reimagining the Movement to End Gender Violence, Anti-­Racism, Prison Abolition, Women of Color Feminisms, and Other Radical Visions of Justice,” University of Miami Race and Social Justice Law Review 5, no. 2 (2015): 257–­74, at 272; Dorothy E. Roberts, “Constructing a Criminal Justice System Free of Racial Bias: An Abolitionist Framework,” Columbia Human Rights Law Review 39, no. 1 (2007): 261–­86. 78. Aya Gruber, “The Feminist War on Crime,” Iowa Law Review 92, no. 3 (2007): 741–­834. 79. Leigh Goodmark, “‘Law and Justice Are Not Always the Same’: Creating Community Based Justice Forums for People Subjected to Intimate Partner Abuse,” Florida State University Law Review 42, no. 3 (2015): 707–­64. 80. Donna Coker, “Transformative Justice: Anti-­Subordination Processes in Cases of Domestic Violence,” in Restorative Justice and Family Violence, ed. Heather Strang and John Braithwaite (New York: Cambridge University Press, 2002), 128–­52; Angela P. Harris, “Heteropatriarchy Kills: Challenging Gender Violence in a Prison Nation,” Washington University Journal of Law and Policy 37 (2011): 13–­6 6. 81. Goodmark, Law and Justice; John Braithwaite and Kathleen Daly, “Masculinities, Violence and Communitarian Control,” in Just Boys Doing Business?, ed. Tim Newburn and Elizabeth A. Stanko (New York: Routledge, 1994), 189–­213. 82. Richie, Arrested Justice, 133.



Unintended Consequences of Domestic Violence Criminalization

155

83. Deborah M. Weissman, “The Personal Is Political—­and Economic: Rethinking Domestic Violence,” Brigham Young University Law Review 2007, no. 2 (2007): 387–­450; Deborah M. Weissman, “Law, Social Movements, and the Political Economy of Domestic Violence,” Duke Journal of Gender Law & Policy 20, no. 2 (2013): 221–­54, 235. 84. Ms. Foundation for Women, Safety & Justice for All, 20. 85. Tim Dickinson, “The War on Drugs Is Burning Out,” Rolling Stone, January 8, 2015, 34. 86. Ibid., 35.

This page intentionally left blank

PA R T I I

THE LONG MARCH THROUGH THE INSTITUTIONS

This page intentionally left blank

CHAPTER 7

Governing Sex through Bureaucracy JACOB GERSEN AND JEANNIE SUK GERSEN

By the late twentieth century in the United States, traditional laws against sexual immorality, in the form of criminal prohibitions on homosexuality, adultery, sodomy, or fornication, had been repealed or were rarely enforced.1 In its 2003 ruling in Lawrence v. Texas, the U.S. Supreme Court swept away any lingering bans on consensual sex among adults in private, making clear that government did not have a legitimate interest in regulating such voluntary and willing conduct.2 The Court noted “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.”3 But there was never a question that government could legally prohibit sex that is nonconsensual. A student arriving on a U.S. college campus today is sure to be told that there is a one-­in-­five to one-­in-­three chance of being sexually assaulted while in college. Most people believe there is a distinction between sexual violence or harassment—­w rongs that law should prohibit—­and sex—­a liberty that consenting adults may choose to exercise. But the MacKinnonite feminist idea that respecting a private space of sexual liberty “translates into a right to sexually abuse with impunity, to impose sex on the less powerful and get away with it,” has had a renaissance in recent years in the development of campus sexual conduct policy and culture.4 Many may reasonably assume that today’s feminist-­i nfluenced campus sexual assault debate is concerned with forcible or coerced sex, or taking advantage of someone who is too drunk to be able to consent or even move. But increasingly, the conduct 159

160

Jacob Gersen and Jeannie Suk Gersen

that is defined and disciplined as sexual violence or sexual harassment is far broader. In the name of addressing sexual violence, much sexual conduct is prohibited in ways that were unimaginable just a few years ago. In fact, even as much private consensual sexual conduct has been decriminalized in the United States, the legal regulation of sex has intensified. An expanding set of sexual conduct is increasingly cast as non-­consensual or unwelcome and thus impermissible. Efforts to regulate violent or coercive sexual conduct, which were consonant with feminist reform of rape law and the rise of sexual harassment law over the past generation, have grown far beyond it in both substance and procedure. The concept of sexual misconduct has extended to the point that what is regulated includes much voluntary and willing sexual conduct. Today the regulatory project is located in an elaborate governmental bureaucratic apparatus, intertwined with nongovernmental branches in colleges and universities themselves. This bureaucracy is regulating sex, not merely sexual violence or harassment.5 Increasingly, administrative agencies require educational institutions to formulate and implement policies on prevention, investigation, adjudication, and discipline of conduct that deviates from specified sexual norms. Our claim is not just that the set of sexual conduct classified as illegal has grown or changed, but that nonviolent, non-­harassing, voluntary sexual conduct is today regulated by the bureaucracy. As a result, sex, not just sexual violence or sexual harassment, is a domain of both federal and university bureaucracy. In this chapter, we focus on higher education, although the sex bureaucracy reaches beyond this realm.6 Colleges and universities in the United States are particularly important loci of the sex bureaucracy. Especially because of college students’ typical residency away from home and engagement in sexual encounters for the first time, higher education is the site of intense public attention to the problem of sexual assault. The education of captive and impressionable young students is an effective context for training in bureaucratically sanctioned sexual norms. The federal government has presided over the creation of a sex bureaucracy that says its aim is to reduce sexual violence and sexual harassment but that is actually enforcing a contested vision of sexual



Governing Sex through Bureaucracy

161

morality. It has conscripted officials at colleges as bureaucrats of desire, charged with defining healthy permissible sex and disciplining deviations from these aspirational norms. Moving in that direction delegitimizes the imperative to take sexual assault and sexual harassment seriously, and is counterproductive to the feminist goal of addressing the harms of rape, sexual assault, and sexual harassment.

The Legal Landscape for the Emergence of the Sex Bureaucracy The fabric of the modern sex bureaucracy is woven from a web of federal statutes, especially Title IX of the Education Amendments of 1972, which prohibits sex discrimination in education,7 and the Violence Against Women Act, which requires colleges to develop and disclose programs to prevent and address sexual offenses on campus.8 Federal agencies have interpreted these laws to require schools to adopt the tools of bureaucracy—­procedure and organizational form—­to research, survey, inform, investigate, adjudicate, and train.9 The federal bureaucracy essentially required nongovernmental institutions to replicate itself, demanding the development of programs, policies, structures, and procedures that are subject to federal oversight. Bureaucracies within schools grew, to administer the obligations imposed by governmental bureaucracy. Bureaucratic offices inside schools today work full-time to ensure institutional compliance with these increased government demands. The failure of institutions to form their own bureaucracies dedicated to overseeing sexual conduct can now itself violate federal law.10 Once in place, the bureaucracy became like many we know, creeping into domains one would not have thought to be the subject of bureaucratic regulation.11 We have seen a growth of policies within bureaucracies mandated by the government, but increasingly untethered from federal laws that supposedly required their creation to begin with. The expansion of bureaucratic reach from core to contiguous or related areas over time is a form of bureaucratic creep. The institutional foundation solidifies, and the question becomes what else the bureaucracy will do. When this happens in the regulation of sexual conduct, one might call it “bureaucratic sex creep”—­the enlargement of bureaucratic regulation of sex that is not sexual violence or sexual harassment.

162

Jacob Gersen and Jeannie Suk Gersen

The federal anti-discrimination law that has most spawned the growth of the sex bureaucracy in education is Title IX, which prohibits educational institutions that receive federal funding (virtually all colleges and universities in the United States) from discriminating on the basis of sex.12 Over several decades, what it means to discriminate on the basis of sex evolved through a process of judicial and agency interpretation. In the 1980s, courts and agencies administering federal anti-­discrimination laws recognized “sexual harassment” as a form of sex discrimination.13 The Department of Education’s Office for Civil Rights (OCR) is the lead agency for implementing Title IX. Early Title IX regulations required schools to establish their own “grievance procedures,” so that individuals would have a forum to complain about a school’s sex discrimination.14 Since the 1990s, the Supreme Court and OCR have made it clear that sexual harassment is a form of Title IX sex discrimination and that schools are required to correct a hostile environment created by harassing conduct.15 The concept of a “hostile environment” that the school had a responsibility to correct enabled Title IX—­a command to schools not to discriminate—­to reach not only the conduct of the school and its agents but student conduct as well.16 If a student’s acts were pervasive or severe enough to create a hostile environment, and the school did not have effective policies and grievance procedures in place to discover and correct the hostile environment, the school would be discriminating on the basis of sex.17 In 2011, OCR issued a Dear Colleague Letter (DCL)—­a purportedly nonbinding guidance document—­t hat stated that Title IX’s requirements pertaining to sexual harassment also cover sexual violence by students.18 The DCL defined sexual violence as “physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol” and stated that sexual violence included “rape, sexual assault, sexual battery, and sexual coercion.”19 OCR interpreted the “grievance procedures” requirement to mean that schools had to conduct investigations to determine whether student-­on-­student sexual violence occurred.20 These terms were not defined. Most schools have long had disciplinary procedures to handle allegations of student misconduct, including sexual misconduct, but this was the first time the government said a school’s discipline process for sexual violence was mandatory and regulated by OCR’s interpretations of Title IX.21 This was a very significant shift in



Governing Sex through Bureaucracy

163

position, since, as recently as 2005, OCR had stated that a school “was under no obligation to conduct an independent investigation” of an allegation of sexual assault if it “involved a possible violation of the penal law, the determination of which is the exclusive province of the police and the office of the district attorney.”22 But combined with OCR’s threat to take away federal funding if schools did not comply with the agency’s directives, OCR’s scrutiny of schools’ disciplinary procedures became a lever for federal bureaucracy to monitor schools’ regulation of student sexual behavior. With the 2011 DCL, OCR began pressuring schools to put in place measures that not only address a hostile environment but that “may bring potentially problematic conduct to the school’s attention before it becomes serious enough to create a hostile environment.”23 Compliance with Title IX thus meant anticipating “problematic conduct” that does not rise to the level of hostile environment and therefore legally is not sex discrimination. In a letter to the University of Montana, OCR wrote that, rather than limit sexual harassment claims to unwelcome conduct of a sexual nature that creates a hostile environment, the university should define sexual harassment “more broadly” as “‘any unwelcome conduct of a sexual nature.’”24 By this definition, the conduct could include, for example, touching a person’s hand during a date in a romantic way, sending a text message expressing sexual desire, looking at a boyfriend’s genitals—­or, for that matter, asking for explicit consent to have sex. All of these, if a student later complained that they were unwelcome, would fall within OCR’s capacious definition of sexual harassment and therefore must be addressed by schools, through prevention and discipline. The college’s failure to prohibit, investigate, and discipline this conduct would then be unlawful, even if the conduct itself does not create a hostile environment. OCR explicitly made the Montana letter a “blueprint” for the reform of other colleges’ sexual misconduct policies, and the push to expand the definition of sexual harassment has steadily continued. In 2016, OCR informed Frostburg State University that it violated Title IX because its sexual harassment policy stated that, “in assessing whether a particular act constitutes sexual harassment forbidden under this policy, the rules of common sense and reason shall prevail.”25 The university’s policy continued: “The standard shall be the perspective of a reasonable person within the campus community.”26 Could it really

164

Jacob Gersen and Jeannie Suk Gersen

be that a university engages in sex discrimination by using the perspective of a reasonable person to evaluate conduct, a standard that has long been a key feature of sexual harassment law, civil tort law, and criminal law? The sex bureaucracy’s insistence that using reasonableness and common sense is illegal would be amusing if the stakes for individuals and institutions were not so high. The lives of both individual complainants and accused students are often seriously altered by findings or nonfindings of responsibility for sexual misconduct. In addition to the reputational costs of being seen as soft on sexual violence, colleges have been threatened with defunding by the federal government if they maintain policies and procedures that do not satisfy OCR.27

Consent Alongside the concept of “unwelcomeness,” which is traceable to sexual harassment law, the concept of “consent,” predominantly associated with the criminal law of sexual offenses, has become an important definitional node in the sex bureaucracy. The idea of consent has long been contested in feminist legal reform and is currently the subject of widespread discussion, dispute, and transformation.28 To this point, the federal bureaucracy has required schools to publish the applicable definition of consent,29 but has elected not to provide a definition, leaving schools striving to comply by producing their own definitions of consent. A shift from the traditional criminal law focus on signs of a complainant’s non-­consent—­such as physical resistance or at least verbal refusal—­to a notion that consent must be expressed affirmatively, in words or conduct, has become characteristic of the sex bureaucracy, as affirmative consent policies have proliferated on campuses.30 Affirmative consent thus requires a clear indication, often verbal, of agreement to each element of a sexual encounter. Several states have even made colleges’ and universities’ eligibility for state funding contingent on their adoption of affirmative consent policies.31 As consent increasingly became the focus of inquiry, colleges, parents, and advocacy groups offered commonsense advice: to stop if there is any ambiguity about consent, not to take the absence of “no” to mean “yes,” and even to make sure one’s partner was not just willing but enthusiastic. Soon,



Governing Sex through Bureaucracy

165

asking for and receiving a clear verbal “yes” not just for each sexual encounter but for each discrete act during an encounter became a common campus requirement. And at some schools, enthusiasm became not just a precaution to avoid potential mistake about willingness but a definitional requirement of consent itself. Schools attempting to implement versions of affirmative consent have often produced definitions of consent that would seem to prohibit the vast majority of actual sexual conduct that takes place. As one university put it, “Anything less than voluntary, sober, enthusiastic, verbal, non-­coerced, continual, active, and honest consent is Sexual Assault.” Some schools have added to the definition of consent adjectives such as “imaginative” and “creative.”32 By that standard, moving forward even after a clear, verbal statement that is less than enthusiastic is, by definition, sexual assault. So, too, could be sexual conduct with someone who is not completely sober or who agrees to have sex after repeated requests (potential pressure constituting coercion). These consent definitions mark the line between permissible and impermissible sex. Because some colleges’ expansive definitions render much, if not most, sex that occurs on campus a technical violation of the rules, there is enormous discretion and leeway for a participant in a sexual encounter to interpret or label the incident as sexual misconduct. Definitional overinclusiveness makes it difficult for colleges and students to distinguish serious cases of sexual assault and harassment from cases in which the absence of affirmative or enthusiastic agreement nonetheless accompanied a genuinely voluntary decision to engage in sexual conduct. Students who were at the time willing to have sex can still bring complaints against their partners, and under the college’s rules, the complaints should be considered valid. If the difference between consent and non-­consent turns on whether agreement to each discrete act (for example, kissing, touching of each body part, penetration) in a sexual encounter was affirmative or enthusiastic, we will increasingly see students who believe they were victimized after they willingly engaged in sexual activity. One might ask, if a person was actually willing, why would they afterward bring a complaint? It is not because complainants are fraudulent but because a common feature of human sexuality is ambivalence—­both wanting and not wanting at the same time or wanting at one time and later

166

Jacob Gersen and Jeannie Suk Gersen

wishing one had not. This is an acute and pervasive challenge for college administrators because legal ambiguity and sexual ambivalence are a dangerous combination. When everybody is technically violating an overbroad policy but only a small and unpredictable subset is investigated and disciplined for it, largely at the discretion of the partner who decides whether to complain, unfairness and unevenness result. It distracts from the important fight against sexual violence and erodes the legitimacy of serious efforts to combat it.

Discipline & Process Overbroad substantive definitions of sexual misconduct might potentially be tempered by fair and rigorous adjudication processes capable of sorting cases meriting campus discipline from situations of ambivalent, regretted, or “not good” sex. But the procedures that school bureaucracies have adopted under OCR’s oversight have come under consistent critique for failing to provide fair process.33 Many students disciplined under these policies and procedures have sued their schools, claiming that the procedures used to investigate and adjudicate the complaints against them were unfair and unlawful. Such cases provide a glimpse at both the sexual conduct that is being disciplined by the sex bureaucracy and the problems with the process being challenged in court. In a 2015 federal case, a male student sued Washington and Lee University after he was expelled for “nonconsensual sexual intercourse” with a female student.34 His court complaint claimed that the Title IX officer in charge of the proceedings had earlier given a presentation arguing “regret equals rape,” a position she framed as “a new idea everyone, herself included, is starting to agree with.”35 Citing an article titled “Is It Possible That There is Something in between Consensual Sex and Rape . . . and That It Happens to Almost Every Girl out There?” from the website Total Sorority Move, the Title IX officer’s presentation allegedly suggested “that sexual assault occurs whenever a woman has consensual sex with a man and regrets it because she had internal reservations that she did not outwardly express.”36 The accused student alleged that the Title IX officer did not show him a copy of the complaint in a timely fashion, refused his request to have a lawyer participate in the proceedings, failed to interview



Governing Sex through Bureaucracy

167

several of his suggested witnesses, selectively omitted facts from the investigative report, denied his request to record the hearing, and hindered him from putting questions to the complainant, who attended the hearing behind a partition.37 After the court refused to grant the university’s motion to dismiss the case, the parties settled. Another federal case, in 2016, involved two male undergraduates at Brandeis University who had a romantic and sexual relationship that lasted almost two years. After their breakup, one attended a university sexual assault training session, and his thinking about his former boyfriend began to change. He filed a complaint with the university, alleging “a number [of] inappropriate, nonconsensual interactions” during the relationship. While sleeping together, he said, his boyfriend occasionally woke him up with kisses and sometimes continued kissing him when he wanted to go back to sleep. When they showered together, his boyfriend looked at his genitals. At the start of their romance, his boyfriend once put a hand on his clothed groin while they watched a movie together. A year and a half into the relationship, his boyfriend once tried to perform oral sex when the complainant did not want it, and they quarreled and then made up. The university found the accused ex-­boyfriend responsible for each of these incidents, with a permanent educational record indicating that he was disciplined for “sexual misconduct, lack of consent, taking advantage of incapacitation, sexual harassment, physical harm, and invasion of personal privacy.”38 The complainant and other students referred to the complainant on social media as a victim of sexual assault and called his ex-­boyfriend his “attacker,” a “rapist,” and “a threat to the safety of the well-­being of the entire campus.”39 The accused student sued Brandeis, alleging that the procedures the university used to investigate and adjudicate the complaint against him were unfair. In refusing to grant the university’s motion to dismiss the lawsuit, the judge found that the accused student’s claim of unfair procedures—­including Brandeis’s failure to give him notice of specific charges, allow him to have counsel, or permit him to cross-­examine the complainant or witnesses—­made it plausible that the university did not provide him with basic fairness. As the court put it, “substantially spurred by” OCR’s 2011 DCL, “universities across the United States have adopted procedural and substantive policies intended to make it easier for victims of sexual assault to make and prove their claims and

168

Jacob Gersen and Jeannie Suk Gersen

for the schools to adopt punitive measures in response.” 40 The court noted that Brandeis, with its new policies, “appears to have substantially impaired, if not eliminated, an accused student’s right to a fair and impartial process.” 41 The student then dropped the lawsuit, because, given the cost of continuing it, he felt vindicated by the court’s ruling.42 In yet another case, a federal judge concluded that Brown University breached a student’s reasonable expectation by applying a new affirmative consent definition to an incident that occurred before it was adopted.43 Brown’s new definition specified that consent obtained through “manipulation” was invalid; in a text exchange before the sexual encounter, the female complainant told the male student that he was trying to manipulate her, and he said, “I’m trying to manipulate you a lot.” 44 Finding that the accused student’s responsibility for sexual misconduct likely turned on Brown’s use of the new consent definition, the court held that he was entitled to a new hearing.45 On both procedure and substance, courts have increasingly recognized unfairness in sexual misconduct policies and practices adopted by colleges in the past several years. And in the wake of multiple court decisions in favor of accused students, in 2016, OCR itself found that Wesley College violated Title IX with the unfair procedures it used to expel a male student accused of live-­streaming without consent an otherwise consensual sexual encounter. The college’s investigation had omitted an interview of the accused, and he had not been given the incident report before the hearing or a chance to provide or challenge evidence.46

Department of Sex Education Because many new definitions of consent in school policies diverge rather starkly from anything familiar in criminal law or civil tort law, these transformations have required educational campaigns on campus, which are categorized as sexual violence prevention programs mandated by the Violence Against Women Act.47 According to Yale University’s 2013 Annual Security Report, its prevention program tells students that consent is not enough: “Hold out for enthusiasm.” 48 Students are told to “communicate with [their] sexual and romantic partners,” as “open discussion of desires and limits is a critical part of building a positive sexual culture.” 49 Clark



Governing Sex through Bureaucracy

169

University’s consent materials, subtitled “Doing It with the Lights On,” tells students, “We want you to have great sex if you choose to have sex—­safer, mutually enjoyable, consensual sex.”50 The University of Wyoming has a section in its consent materials, called “Don’t Kill the Mood,” that explains: “Asking for consent not only shows that you respect and care for your partner, but it also shows your creativity and can even make the sexual interaction more intimate.”51 The University of Georgia tells students, “Don’t give up” in asking partners about “sexual needs and desires.”52 Or, as the University of California, San Diego’s materials, titled “Dirty Talk: Making Consent Fun!” declare, “Consent is not only necessary, but also foreplay.”53 The University of Wyoming instructs that consent should be a verbal “‘Yes.’ Or even, ‘Yes, Yes, Oh! Yes!’”54 It supplies some suggested phrases to use in a sexual encounter, to “Make Consent Sexy”: Baby, you want to make a bunk bed: me on top, you on bottom? Would you like to try an Australian kiss? It’s like a French kiss, but “Down Under.” I’ve got the ship. You’ve got the harbor. Can I dock for the night?55 Putting aside the question of whether these kinds of utterances reduce the ambiguity of consent, these instructions are not about rape, sexual assault, or sexual harassment. They are how-­tos for sexual arousal, proposition, and seduction—­not just agreement to have sex. They are, in effect, endeavors to construct a value-­laden sexual relationship environment. When a school counsels students that “Consent is about real, honest, confident and open communication,”56 consent stands in for a whole normative world of assumptions about what makes sex and relationships good, satisfying, worthwhile, meaningful, and fulfilling. On this, the University of Wyoming is especially explicit: “By communicating what you want and need from your sexual relationship (and your relationship outside the bedroom), you will develop a more caring, responsive, respectful love life.”57 Under federal bureaucratic oversight and within the rubric of preventing sexual violence, schools are deep in the business of formulating and providing sex and relationship instruction and regulating it bureaucratically.58 They are engaged in a program of good-­sex education, couched in views about good relationships in which that good sex should be had.

170

Jacob Gersen and Jeannie Suk Gersen

Prevention The federal bureaucracy oversees schools’ efforts to prevent sexual violence.59 Anticipating potentially problematic behavior before it occurs is a feature of what might be called the public-­health model of sexual violence. This model centers on prevention and on identifying factors that increase the risk of sexual violence.60 In the federal government, this effort has been led by the Centers for Disease Control and Prevention (CDC), whose approach has been adopted by other agencies, including the Department of Education and the Department of Defense.61 For example, the Department of Education’s regulations implementing the Violence Against Women Act of 2013 require schools to publish their sexual violence prevention programs for all incoming students and employees and to promote “positive and healthy behaviors that foster healthy, mutually respectful relationships and sexuality, encourage safe bystander intervention, and seek to change behavior and social norms in healthy and safe directions.” 62 The regulations explain that sexual violence prevention programs must consider the risk factors for sexual violence that the CDC has prepared. These risk factors include “lack of employment opportunities,” “poverty,” a “lack of institutional support from police and judicial system,” coercive sexual fantasies, preferences for impersonal sex and sexual risk-­taking, exposure to sexually explicit media, and hyper-­masculinity.63 Schools are required to develop prevention programs that use these risk factors to identify high-­risk individuals and target them with education and monitoring programs.64 For example, Ohio University’s “Black Men Think Tank” and “Healthy Masculinity Working Group” are categorized by the university in its Annual Security Report as focusing on “Relationship Level” risk factors; their “Better Bystanders” program focuses on individual risk factors, and their “Sober Sex” posters are classified as community-level intervention.65 This individual, relationship, and community (or environmental) risk factor framework is taken almost verbatim from the CDC. On the one hand, developing prevention programs built on risk factors like “lack of employment opportunities,” “poverty,” and a “lack of institutional support from police and judicial system[s]” seems likely to result in disproportionate targeting of poor men of color on campus. On the other hand, targeting pornography and sexual fantasy is



Governing Sex through Bureaucracy

171

more than a little reminiscent of traditional sexual morals measures. Prevention programs seek to construct good and bad sexual conduct and entail regulation of sexual behavior that is not sexual violence or harassment but rather associated in some statistical sense with an increased risk of sexual violence. When a community is instructed that individuals with the above risk factors are more likely to commit sexual violence, it is not hard to imagine that when it comes to accusation, investigation, and adjudication, those individuals would be perceived as more likely to have committed sexual violence.

Distributing Discipline Vague and broad prohibitions that sweep in swathes of innocent conduct in which most people engage should raise worries about whether enforcement may have a greater impact on social groups that are already disadvantaged.66 Two black male student athletes sued the University of Findlay, alleging “a pattern of . . . discriminat[ing] against African-­American males” in white females’ allegations of sexual assault.67 The plaintiffs alleged that they were expelled within twenty-­ four hours of the lodging of a sexual assault complaint against them, that the university failed to question key witnesses, including the complainant, and that it threatened witnesses with expulsion or loss of work-­study because their stories corroborated the defense offered by the accused black students.68 The expelled students alleged that the sexual activity was consensual and that the complainant had bragged to others the following morning about her consensual sexual encounter with the plaintiffs.69 In another lawsuit, a black male student accused of sexual assault by a white female student sued the University of Pennsylvania, alleging that an unfair investigation process discriminated on the basis of race in violation of federal civil rights laws.70 Because civil rights groups have complained for years about excessive discipline in primary and secondary schools and its tendency to channel students of color into the “school-­to-­prison pipeline,” the same OCR that is administering the sex bureaucracy has also acknowledged the serious risk of race discrimination in student discipline in elementary and secondary schools and has issued guidance on “how to identify, avoid, and remedy discriminatory discipline.”71 OCR’s Civil Rights Data Collection

172

Jacob Gersen and Jeannie Suk Gersen

showed that “African-­American students . . . are more than three times as likely as their white peers . . . to be expelled or suspended” and that “the substantial racial disparities . . . are not explained by more frequent or more serious misbehavior by students of color.”72 And OCR has recognized that “African-­American students were disciplined more harshly and more frequently because of their race than similarly situated white students. In short, racial discrimination in school discipline is a real problem.”73 But to date almost no one—­much less OCR—­has wondered whether the sex bureaucracy risks adding to this serious injustice. This raises several questions: Whose sexual conduct is more likely to be perceived by individuals and schools as threatening, frightening, or menacing, particularly when the community has been educated about risk factors for sexual violence that seem to correlate with racial stereotypes and socioeconomic status?74 And which complainants are more likely to be perceived as victims?75 Is there good reason to think that the unconscious racial stereotyping that may affect police and citizens in decisions to suspect, accuse, arrest, or shoot black men would have no analogue in the pattern of campus accusations and discipline for sexual misconduct?76 The race of the parties in misconduct cases is not included in existing federal reporting requirements. Indeed, schools may even perceive that their obligations under the Family Education Rights and Privacy Act forbid the release of data on the race of parties—­t hat is, if schools are even compiling and saving such information, which they have not been required to do.77 Among administrators, lawyers, and faculty members involved in sexual misconduct cases, however, stories of disproportionate racial impact are common. “Case after Harvard case that has come to my attention, including several in which I have played some advocacy or adjudication role, has involved black male respondents,” writes Janet Halley. “But the institution cannot ‘know’ this because it has not been thought important enough to monitor for racial bias.”78

Conclusion Sexual norms change, and colleges have often been at the forefront of that change. This time around, the shift has been supervised by the



Governing Sex through Bureaucracy

173

federal government. Under the guise of sexual violence prevention and discipline, the sex bureaucracy has grown to oversee sexual matters in a way that defies common sense and renders most actual sexual interactions impermissible. The combination of expansive definitions of sexual misconduct and inadequate process means that the bureaucracy will investigate and discipline much sexual conduct that parties engage in willingly. The result of all this is not a sexual violence bureaucracy or a sexual harassment bureaucracy. It is a sex bureaucracy, focused on encouraging healthy sexual morality and disciplining conduct that deviates from those norms. Once institutions are created, offices staffed, policies promulgated, and discipline for sexual misconduct meted out, they are likely to continue, even if the federal government subsequently changes its views or cedes the field. Federal requirements are now intertwined with university bureaucracies. The result is an expansive bureaucratic apparatus operating on every campus in the country, constructed in response to demands of the federal bureaucracy but now also having a life and motivation of its own. The Trump administration’s OCR rescinded the 2011 Dear Colleague Letter and many of the interpretations of federal law that led to the burgeoning sex bureaucracy. But unless OCR actually forbids the very practices it has pressed schools to adopt since 2011—­which it has not—­it is hard to imagine schools making costly wholesale changes to the policies and practices they have expended many resources to build. Many schools that entered resolution agreements with the Obama administration’s OCR will be bound to abide by them, unless OCR goes so far as to invalidate the existing agreements, which is highly unlikely. Inertia is now on the sex bureaucracy’s side. There is little in the historical record to suggest that a government gives up power and control on this order of magnitude. More likely is that, on the foundation of the new sex bureaucracy laid down in the past several years, future administrations will advance differing versions of sexual morality. The norms of sexual conduct and the reform of schools’ responses so actively embraced by feminist activists in recent years are, of course, not the same as the vision of sexual morality potentially imposed from the right. But common ground between them may not be so elusive in the sex bureaucracy. Since almost the entire domain

174

Jacob Gersen and Jeannie Suk Gersen

of sexual interaction can be regulated under the guise of sexual violence prevention, on which both left and right can agree, there is reason to think the sex bureaucracy in some form is here to stay. What is more, future iterations may more explicitly reveal how much a governance ­feminist regulation of problematic sex and a conservative sexual-­morality project can converge.

Notes 1. See, e.g., Commonwealth v. Stowell, 449 N.E.2d 357, 360–­61 (Mass. 1983). The Court noted that the state’s adultery statute had “fallen into a very comprehensive desuetude” (citation omitted). 2. 539 U.S. 558, 578 (2003). The Court held that a Texas statute prohibiting sodomy “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” 3. Ibid., 572. 4. Catharine A. MacKinnon, “The Road Not Taken: Sex Equality in Lawrence v. Texas,” Ohio State Law Journal 65, no. 5 (2004): 1090, 1094. For further discussion, see Catharine A. MacKinnon, Toward a Feminist Theory of the State (Cambridge, Mass.: Harvard University Press, 1989), 146. “The major distinction between intercourse (normal) and rape (abnormal) is that the normal happens so often that one cannot get anyone to see anything wrong with it.” 5. Cf. Janet Halley, Split Decisions: How and Why to Take a Break from Feminism (Princeton, N.J.: Princeton University Press, 2006), 21. “Just think of the tremendous effort that U.S. employers and schools must devote to the regulation of sexual conduct at work, through sexual harassment policies that have produced a sexual harassment bureaucracy with its own cadre of professionals and its own legal character.” 6. The sex bureaucracy also applies to primary and secondary schools through Title IX. “Office of Civil Rights, U.S. Dep’t of Educ., Dear Colleague Letter: Sexual Violence Background, Summary, and Fast Facts,” April 4, 2011, https://perma.cc​ /J9ER-6HBV. There are also extensive rules about sex in the contexts of the military and prison. See U.S. Department of Defense, “Sexual Assault Prevention and ­Response: Law & DOD Policy,” https://perma.cc/P9JP-DEPL (accessed March 22, 2016); National PREA Resource Center, “Justice Department Releases Final Rule to Prevent, Detect, and Respond to Prison Rape,” https://perma.cc/4HTW-DZZP (accessed March 22, 2016). 7. Title IX of the Education Amendments of 1972, Pub. L. No. 92–­318, 86 Stat. 373 (1972) (codified as amended at 20 U.S.C. §§ 1681–­1688 (2012)). 8. Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-­4, 127 Stat. 54, 90 (2013) (codified as amended at 20 U.S.C. § 1092(f)(8)). 9. See 34 C.F.R. §§ 668.46(j)–­(k) (2015); Violence Against Women Act, 79 Fed. Reg. 62,752 (October 20, 2014) (codified at 34 C.F.R. § 668 (2015)). 10. Office of Civil Rights, U.S. Department of Education, Sexual Harassment Guidance 1997 (Washington, D.C.: U.S. Department of Education, 1997), https:// perma.cc/2XTT-YFPD (accessed December 25, 2018).



Governing Sex through Bureaucracy

175

11. See Max Weber, “Bureaucracy,” in Economy and Society, ed. Guenther Roth and Claus Wittich (Oakland: University of California Press, 1978), 956. 12. 20 U.S.C. §§ 1681–­688. 13. See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66–­67 (1986). The Court found, for the first time, that sexual harassment constituted sex discrimination, which could violate Title VII if it created a hostile work environment. For further discussion, see Vicki Schultz, “Reconceptualizing Sexual Harassment,” Yale Law Journal 107, no. 6 (1998): 1685 n4; Katherine M. Franke, “What’s Wrong with Sexual Harassment?,” Stanford Law Review 49, no. 4 (1997): 691, 692; Ellen Frankel Paul, “Sexual Harassment as Sex Discrimination: A Defective Paradigm,” Yale Law & Policy Review 8, no. 2 (1990): 333, 343. For a nuanced discussion of some unforeseen ways that workplace sexual harassment regulation may undermine gender equality on the job, see Vicki Schultz, “The Sanitized Workplace,” Yale Law Journal 112, no. 8 (2003): 2061, 2074–­82. 14. See Martha Matthews and Shirley McCune, “Title IX Grievance Procedures: An Introductory Manual” (Washington, D.C.: National Foundation for the Improvement of Education, 1976), 38. “The fundamental purpose of a Title IX grievance procedure is to provide a fair, orderly, and systematic process for identifying, modifying, and remedying any policy, procedure, or practice of an education agency or institution which is not in compliance with Title IX requirements.” 15. See Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 75 (1992). “Unquestionably, Title IX placed on the Gwinnett County Public Schools the duty not to discriminate on the basis of sex. . . . We believe the same rule should apply when a teacher sexually harasses and abuses a student.” For further discussion, see Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, 62 Fed. Reg. 12,034, 12,046 n3 (March 13, 1997). The guidance notes that the Department of Education had (in 1997) been interpreting Title IX as “prohibiting sexual harassment for over a decade.” See also U.S. Department of Education, Office for Civil Rights, “Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties,” January 2001, https://www2.ed.gov/offices/OCR/archives/pdf/shguide.pdf. 16. The Supreme Court confirmed in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), that schools could be liable for violating Title IX based on students’ sexually harassing conduct. 17. The Department of Education noted in the 1997 guidance that a school could be in violation of Title IX, even if the school was unaware of harassment that created a hostile environment, if it lacked “effective policies and grievance procedure . . . because, without a policy and procedure, a student does not know either of the school’s interest in preventing this form of discrimination or how to report harassment so that it can be remedied.” Office for Civil Rights, “Sexual Harassment Guidance,” Federal Register 62: 12,040. 18. Russlynn Ali to Colleague, “Dear Colleague Letter: Sexual Violence,” April 4, 2011, 1–­3, https://perma.cc/7LMK-6U8H. 19. Ibid. 20. Ibid., 10. 21. Ibid., 9. The letter states that “OCR will review all aspects of a school’s grievance procedures” to ensure that the procedures comply with OCR’s interpretation of Title IX requirements.

176

Jacob Gersen and Jeannie Suk Gersen

22. John F. Carroll to Muriel A. Howard, August 30, 2005, on file with authors. 23. Ali, “Dear Colleague Letter,” 6. 24. Anurima Bhargava and Gary Jackson to Royce Engstrom and Lucy France, May 9, 2013, https://www.justice.gov/sites/default/files/opa/legacy/2013/05/09/um​ -ltr-findings.pdf. 25. Beth Gellman-­Beer to Dr. Ronald Nowaczyk, September 9, 2016, 7, https:// www2.ed.gov/about/offices/list/ocr/docs/investigations/more/03132328-a.pdf. 26. Ibid. 27. See, e.g., U.S. Department of Education, “U.S. Department of Education Finds Tufts University in Massachusetts in Violation of Title IX for Its Handling of Sexual Assault and Harassment Complaints,” press release, April 28, 2014, https://perma​ .cc/53LQ-9t8G (accessed December 25, 2018). “Under federal civil rights regulations, OCR may move to initiate proceedings to terminate federal funding of Tufts or to enforce the agreement.” 28. See, e.g., Note, “Acquaintance Rape and Degrees of Consent: ‘No’ Means “No,” but What Does ‘Yes’ Mean?,” Harvard Law Review 117, no. 7 (2004): 2341–­64. 29. Violence Against Women Reauthorization Act of 2013. 30. See, e.g., Janet Halley, “The Move to Affirmative Consent,” Signs, November 10, 2015, updated November 16, 2015, https://perma.cc/A4FZ-S6F3; Hannah ­Kozlowska, “Yes Means Yes: The Big Consent Debate,” New York Times, October 15, 2014, http://perma.cc/47Q2-SX5N; Judith Shulevitz, “Regulating Sex,” New York Times, June 27, 2015, https://www.nytimes.com/2015/06/28/opinion/sunday/judith​ -shulevitz-regulating-sex.html. Shulevitz describes the debate over whether the American Law Institute’s Model Penal Code revision for sexual assault should adopt an affirmative-­consent standard. 31. See, e.g., Cal. Educ. Code § 67386 (2015); N.Y. Educ. Law § 6441 (2015). 32. Georgia Southern University, 2015 Annual Security Report, 2015, 39, https://perma.cc/8NQFSEQY (accessed April 3, 2016). Note that this definition incorporates the enthusiasm standard. If there was no enthusiasm, there was no consent. 33. This move was met with considerable protest by a number of professors at these institutions, who objected to many of the changes schools made in response to OCR’s threats to cut off federal funding. See, e.g., Elizabeth Bartholet et al., “Rethink Harvard’s Sexual Harassment Policy,” Boston Globe, October 15, 2014, https://www​ .bostonglobe.com/opinion/2014/10/14/rethink-harvard-sexual-harassment-policy /HFDDiZN7nU2UwuUuWMnqbM/story.html; Eugene Volokh, “Open Letter from 16 Penn Law School Professors about Title IX and Sexual Assault Complaints,” Washington Post, February 19, 2015, https://perma.cc/Z2Y8-JBSH. 34. Doe v. Washington & Lee University, No. 6:14-­c v-­0 0052, 2015 WL 4647996, *1 (W.D. Va. August 5, 2015) (mem.). 35. Ibid., *3. 36. Veronica Ruckh, “Is It Possible That There Is Something in between Consensual Sex and Rape . . . and That It Happens to Almost Every Girl out There?,” Total Sorority Move, September 11, 2014, https://perma.cc/PU2R-YVN7; Washington & Lee University, 2015 WL 4647996, *10. 37. Washington & Lee University, 2015 WL 4647996, at *4–­6.



Governing Sex through Bureaucracy

177

38. Pl.’s Mem. of Law in Opp’n to Def. Brandeis Univ.’s Mot. to Dismiss Am. Compl., Doe v. Brandeis University, No. 1:15-­c v-­11557-­FDS, 2015 WL 9254486 (D. Mass. March 31, 2016). 39. Doe v. Brandeis University, 177 F. Supp. 3d 561, 585 (D. Mass. 2016). 40. Ibid., 572. 41. Ibid., 573. 42. Max Moran, “‘John Doe Drops’ Lawsuit against University,” Justice, September 27, 2016, https://issuu.com/justice/docs/27_september_2016. 43. Doe v. Brown University, No. CV 16–­017 S, 2016 WL 5409241, *14 (D.R.I. September 28, 2016). 44. Ibid. 45. Ibid., *17. 46. Beth Gellman-­Beer to Robert E. Clark II, October 12, 2016, http://www2​ .ed.gov/about/offices/list/ocr/docs/investigations/more/03152329-a.pdf; Fernanda Zamudio-­Suarez, “Wesley College Violated Title IX Rights of Accused Students, Education Department Says,” Chronicle of Higher Education, October 12, 2016, http:// www.chronicle.com/blogs/ticker/. 47. See 34 C.F.R. §§ 668.46(j)–­(k) (2015). VAWA’s text requires each school participating in the federal financial aid program to “develop and distribute as part of the” Annual Security Report a statement of policy regarding the institution’s programs to prevent domestic violence, dating violence, sexual assault, and stalking; and the procedures that the institution will follow once an incident of domestic violence, dating violence, sexual assault, or stalking has been reported, including a statement of the standard of evidence that will be used during any institutional conduct proceeding arising from such a report. Violence Against Women Reauthorization Act of 2013. 48. Yale University, 2013 Annual Report on Campus Security and Fire Safety 2013, 2014, 21, https://perma.cc/K5ET-QFUA. 49. Ibid. 50. University of New Hampshire, “Consent 101 or: Doing It with the Lights On,” Denise A. Hines and Kathleen Palm Reed, https://perma.cc/YFT9-EQJL (accessed December 25, 2018). 51. University of Wyoming, “Where Is Your Line: Consent Is Sexy,” https://perma​ .cc/45FK-BQRQ (accessed April 3, 2016). 52. Ibid. 53. University of California, San Diego, 2014 Annual Security Report, 2014, 15, https://perma.cc/8PL4-ATFE. 54. University of Wyoming, “Where Is Your Line.” 55. Ibid. 56. Ibid. 57. Ibid. 58. Surely many schools produced some educational materials on healthy sex and relationships prior to or independent of the federal requirements that now frame such materials. Such materials now exist under the auspices of the federal bureaucracy’s mandatory reporting, prevention, and discipline regimes. 59. Violence Against Women Reauthorization Act of 2013. 60. 34 C.F.R. § 668.46(j)(1)(i) (2015).

178

Jacob Gersen and Jeannie Suk Gersen

61. See Sarah DeGue, Centers for Disease Control and Prevention, Preventing Sexual Violence on College Campuses: Lessons from Research and Practice, special report prepared at the request of the White House Task Force to Protect Students from Sexual Assault, April 2014, 13–­30, https://perma.cc/JWX3-E5TL; U.S. Department of Defense, 2014–­2016 Sexual Assault Prevention Strategy (Washington, D.C., 2014), 19, https://perma.cc/NJ9A-BTVW; Keith Hautala, “‘Green Dot’ Effective at Reducing Sexual Violence,” UKNOW, September 10, 2014, http://perma.cc/2E4R​ -TM4B; Kimber Williams, “Sexual Violence Prevention Task Force Offers Recommendations,” Emory Report, November 6, 2014, http://news.emory.edu/stories/2014/11/er​ _sexual_violence_task_force/campus.html; Habif Health & Wellness Center, Washington University in St. Louis, “Empirical and Theoretical Background,” http:// perma.cc/7528-SCWP (accessed April 2, 2016). 62. 34 C.F.R. § 668.46(j)(2)(iv)(2015). 63. Centers for Disease Control and Prevention, “Sexual Violence: Risk and Protective Factors,” https://www.cdc.gov/violenceprevention/sexualviolence/riskpro​ tectivefactors.html, last modified February 10, 2015. VAWA Regulations require schools’ prevention programs to “consider environmental risk and protective factors as they occur on the individual, relationship, institutional, community, and societal levels.” 34 C.F.R. § 668.46(a). 64. The CDC highlighted that one type of intervention strategy is programming “aimed at those who are thought to have a heightened risk for sexual violence perpetration or victimization.” Centers for Disease Control and Prevention, Sexual Violence Prevention: Beginning the Dialogue (Atlanta, 2004), 7, https://perma​ .cc/2LUL-9CWT. 65. Ohio University, 2016 Clery Act Annual Security Report, 2016, 8. 66. See, e.g., Chicago v. Morales, 527 U.S. 41 (1999). 67. Compl. at 33, Browning v. University of Findlay, No. 3:15-­cv-­02687 (N.D. Ohio December 23, 2015). 68. Ibid., 33. 69. Ibid., 2. 70. Complaint, Doe v. Trustees of the University of Pennsylvania, No. 2:16-­c v​ -­05088-­JP (E.D. Pa. September 22, 2016), https://drive.google.com/file/d/0B7RC​ FEG77OSVemswLWxMZGlMTDg/view. 71. Catherine E. Lhamon and Jocelyn Samuels to Colleague, “Dear Colleague Letter on the Nondiscriminatory Administration of School Discipline,” January 8, 2014, 1, https://perma.cc/NZK4-AJPD. 72. Lhamon and Samuels, “Dear Colleague,” 3–­4. 73. Ibid., 4. 74. Cf. Michelle Alexander, The New Jim Crow (New York: New Press, 2012), 182–­85. Alexander discusses how, in the interest of fighting crime, society may create a “set of structural arrangements that locks a racially distinct group into a subordinate political, social, and economic position.” For further comparison, cf. Byron Hurt, “Rape: A Loaded Issue for Black Men,” NewBlackMan Exile, December 5, 2013, http://www.newblackmaninexile.net/2013/12/rape-loaded-issue-for-black​ -men-on.html. “Countless Black men, like Alabama’s the Scottsboro boys, Chicago’s Emmett Till, the Central Park Five in New York City, and more recently Brian



Governing Sex through Bureaucracy

179

Banks in Atlanta, GA, have shamefully suffered the injustice of a racist criminal justice system that rushed to judgment, with little or no evidence.” 75. See Kimberlé Crenshaw, “Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color,” Stanford Law Review 43, no. 6 (1991): 1241, 1266, 1269. Crenshaw notes the familiar “casting of all Black men as potential threats to the sanctity of white womanhood” and observes that the “primary beneficiaries of policies supported by feminists and others concerned about rape tend to be white women.” 76. See Jeannie Suk, “Shutting Down Conversations about Rape at Harvard Law,” New Yorker, December 11, 2015, https://perma.cc/D5BN-486B. “If we have learned from the public reckoning with the racial impact of over-­criminalization, mass incarceration, and law enforcement bias, we should heed our legacy of bias against black men in rape accusations. The dynamics of racially disproportionate impact affect minority men in the pattern of campus sexual-­misconduct accusations, which schools, conveniently, do not track, despite all the campus-­climate surveys. . . . The ‘always believe’ credo will aggravate and hide this context, aided by campus confidentiality norms that make any racial pattern difficult to study and expose.” 77. 20 U.S.C. § 1232g (2012). The Family Education Rights and Privacy Act “prohibits universities from capriciously releasing ‘education records’” and has been invoked to justify not releasing records regarding sexual assault complaints. 78. Janet Halley, “Trading the Megaphone for the Gavel in Title IX Enforcement,” Harvard Law Review Forum 128 (2015): 103, 107–­8.

CHAPTER 8

Feminism, Law, and Epidemiology in the AIDS Response AZIZA AHMED

Between 1981 and 1987, public health officials identified 4,029 women living with AIDS in the United States.1 By 1991, the Centers for Disease Control and Prevention (CDC) reported that 27,485 women were living with HIV in the United States.2 And, by 2013, public health agencies counted sixteen million women as living with HIV globally. Today, advocates and public health practitioners frequently describe HIV as a “feminized” epidemic, dramatically different from the association between gay men and AIDS that defined the early response to HIV.3 Feminist interventions, particularly by feminist AIDS activists, were central to identifying the epidemic among women, resulting in public health agencies recognizing women as an “at-­risk” group for HIV. The rising number of detected AIDS cases among women drew in a broad range of feminist actors, including those from the feminist women’s health movement, reproductive and sexual rights advocates, and anti-­ trafficking activists. By the 1990s, AIDS was an issue of feminist concern.4 The increasing involvement of feminists in identifying, managing, and responding to the HIV epidemic lends itself to a governance feminist analysis. As defined by Halley, Kotiswaran, Rebouché, and Shamir, Governance Feminism (GF) explores the way “feminists and feminist ideas exert a governing will within human affairs.”5 Further, a GF perspective provides the ability to consider when and how “feminists and

180



Feminism, Law, and Epidemiology in the AIDS Response

181

feminist ideas achieve sufficient legitimacy and influence to ‘conduct the conduct of men.’” 6 In the context of the AIDS epidemic, where behavior and culture shifts around sex and sexuality were integral to the public health objective of decreasing HIV transmission, feminist ideas became central to reimagining what it meant to center women’s rights in the context of an epidemic and reconstitute heterosexual sexuality. In keeping with the frame offered by GF, this chapter critically explores the feminist footprint inside of public health law and policymaking on HIV/AIDS. The chapter examines a key site of feminist intervention: the development of a definition of risk and vulnerability to explain the epidemic among women. This definition of risk and vulnerability rests on what I refer to in this chapter as the “heterosexual risk narrative” in which men are the main source of HIV infection for women and violence against women a key means of women’s vulnerability. The establishment of this definition of risk was a central and life-­saving effort by feminists that ensured that women would be tested and treated for HIV. From this idea of women’s vulnerability to the virus came numerous domestic and international legal reform projects centered around ending violence against women. Yet while this conception of risk proved integral to driving attention and resources to women and HIV, a life-­saving effort, I argue that there were downsides to the continual deployment of women as passive sexual beings. These downsides were generated, in part, due to the co-­optation of feminist ideas into the broader development discourse that prioritized individual responsibility over all else. In the case of carceral feminism, feminists actively sought to form alliances with the U.S. government, aiding in the generation of negative consequences. This chapter explores two of these downsides. First, for women, the ongoing dominance of the heterosexual risk narrative in the AIDS response continually reproduces them as victims, hiding the complexity of women’s sexuality and limiting what we know about the transmission of HIV.7 Second, for men, the heterosexual risk narrative is easily absorbed into the larger neoliberal development paradigm in which men become an easy target of blame and criminalization in a development regime that focuses on individual behavior change over structural responses.

182

Aziza Ahmed

The Beginnings: Could Women Contract HIV? In the early days of the epidemic, the risks posed by the new disease and the possibility for devastation were widely feared.8 Experts—­ including scientists and epidemiologists—­generated much of the “non-­k nowing” around AIDS.9 Major questions drove investigations into the epidemic: Was AIDS a gay cancer?10 A pneumonia?11 How was HIV being spread from person to person? Following Ulrich Beck, we can understand the concept of risk as a means of organizing and managing the unpredictable and unknowable.12 In other words, the construction of risk in the AIDS epidemic allowed epidemiologists and public health workers to manage an epidemic that they did not fully understand. Risk became a mode of governing populations through public health. Whether women were a risk group for contracting HIV remained a controversial question until the early 1990s.13 A few early epidemiological studies suggested that women had contracted HIV in sub-­Saharan Africa. For example, a 1986 study by Thomas Quinn and colleagues (many of whom went on to become leaders in the HIV response) found that in several study sites women were more likely to have HIV than men. This and other similar studies sparked the interest of epidemiologists who noted that in “Africa” female-­to-­male transmission was more common than in the United States and Europe, where fewer women had HIV.14 While heterosexual intercourse was generally identified as a risk factor for contracting HIV, much of the initial focus on women singled out sex workers as “vectors of disease” putting men at risk. As epidemiologists investigated the question of women and HIV, other experts posited that women were actually resistant to contracting HIV. Discover magazine, for example, published an article in 1986 arguing that women were resistant to contracting HIV due to their “rugged vaginas,” which were less susceptible to contracting HIV than the “fragile urethras” or “vulnerable rectums” of men.15 This idea was repeated time and again. In a book published in 1990, The Myth of the Heterosexual AIDS Epidemic: How a Tragedy Has Been Distorted by the Media and Politics, author and journalist Michael Fumento stated that the differences in the tissue construction of the male urethra and rectum and the female vagina—­the latter being



Feminism, Law, and Epidemiology in the AIDS Response

183

constructed of tough cells that resist rupture—­resulted in an epidemic largely concentrated among gay men.16 In other words, there was no need to fear a heterosexual epidemic, and certainly not one among women. In response to the New York Times review of Fumento’s book,17 an anonymous letter to the editor stated, “I am a 36-­year-­old happily married, white female, who has never had syphilis, gonorrhea or chlamydia, has never used crack, never been an intravenous drug user, never had a blood transfusion. I test positive for the human immunodeficiency virus.”18 By the time this letter to the editor was published in 1990, feminist activists already knew what this anonymous author was asserting—­ women were contracting HIV and dying from AIDS-­related illnesses. The feminist women’s health movement, which predated the AIDS epidemic and had already brought key victories, including the liberalization of abortion laws in United States, had primed feminist health activists to spot inequalities in health care. Importantly, the feminist women’s health movement advanced the idea that scientific and medical knowledge itself was incomplete because the research was largely generated from male research subjects.19 In a key victory, feminists forced the National Institutes of Health to mandate that research included women.20 Many of these efforts corresponded to race-­based movements on health, including those of the Black Panthers, who advocated for inclusion of racially diverse subjects in research and community health services.21 Each of these efforts laid the foundation for a transformation in thinking about women and HIV. For feminists interested in HIV, many of whom were women of color, AIDS appeared no different from the health issues before it: women were being neglected in the science and medicine of this new epidemic while being denied resources to survive. Empowered by this insight, feminist lawyers, led by the HIV Law Project, represented women living with HIV in their attempt to get Supplemental Security Income (SSI) on the ground of disability. They quickly realized that women were not being detected as having HIV, which was having the corollary impact of denying women needed benefits and services. They noticed that the absence of cervical cancer on the list of AIDS-­defining illnesses by the CDC contributed to women not being detected by physicians as having HIV. In turn, women were not being given SSI benefits.22

184

Aziza Ahmed

Feminist lawyers and a broader coalition of advocates fought to make the CDC list more inclusive so that women with HIV would qualify for benefits. In 1993, in response to the activism, the CDC changed its definition of AIDS-­defining illness to include invasive cervical cancer.23 In 1994, the World Health Organization did the same.24 HIV-­ positive women would now be more likely to be diagnosed with HIV. It was a life-­saving feminist victory for the many women living with HIV who would be more likely to receive available care and social services. The expansion of the list of AIDS-­defining illnesses by the CDC and WHO resulted in the discovery of a global epidemic among women. And, in perhaps the most dramatic reversal, descriptions of the vagina, no longer rugged, gave way to the idea that the cervix was extra-­ vulnerable in the epidemiological and advocacy literature. The presence of a subgroup of women who could have contracted HIV only through heterosexual sex evidenced that a heterosexual-­ specific epidemic was possible. Key questions still remained, however, including why women were contracting HIV. And, importantly, now that the data included women, why was it the case that in some regions, particularly sub-­Saharan Africa, women had HIV in greater numbers than men? This latter question raised a new concern that fundamentally challenged the newly dated belief that there would be no epidemic among women: Were heterosexual women actually more vulnerable to contracting HIV than other risk groups? Dominance feminism, which saw the structural subordination of women by men as a constant and unchanging universal factor,25 had an answer to these questions for advocates and epidemiologists: HIV was the result of women’s oppression by men. For dominance feminists responding to the AIDS epidemic, male domination was a constant over time and place, and while it shifts in its presentation, it is consistently cognizable. Women are nearly universally unable to negotiate sex, are often subject to physical and emotional abuse, are powerless in sexual interactions, and, in turn, are unable to protect themselves from contracting HIV.26 Women never seek heterosexual pleasure or gain from sex—­in other words, it is never a woman who might suggest that a condom is undesirable and never a woman who would seek out multiple partners. The category of “heterosexual risk” became an organizing concept for how feminists would both understand the epidemic and strategize solutions to it in attempts to decrease the risks faced by women.



Feminism, Law, and Epidemiology in the AIDS Response

185

By the 1990s, feminist ideas of how patriarchy and masculinity contributed to the spread of the epidemic were present in legal and epidemiological literature. Epidemiologists and advocates understood the epidemic among heterosexual women to be distinctly different from that affecting gay men. The growing scholarly and epidemiological literature on women and AIDS immediately introduced the idea that women were at risk for numerous reasons, including “sex roles, social conditions, and socioeconomic conditions.”27 Studies suggested that women were more likely to be poor and cut off from social services.28 The recognition that factors beyond biological vulnerability played a role in heterosexual transmission opened the door to theorizing on the social and biological risk factors that women faced in the context of HIV. And epidemiologists and scientists left the door open to feminist understandings and ideas about risk and vulnerability. Dominance feminism became a key mode of understanding how women were at risk for contracting HIV. Early writing on the epidemic by lawyers and activists was quick to point to the gender and power dynamics that may influence women’s vulnerability to contracting HIV. A volume published in 1992 by the ACLU, for example, highlighted the way gender was understood to play a role in why women contracted HIV: Heterosexually active women approach the issue of negotiating sex practices with a partner in a context that is fundamentally different in two critical ways from the situation of gay men. First, two male partners more often bring equal social power to what is essentially a bargaining situation. By contrast, women as a group lack the same social power as men. Many heterosexual women, for financial or cultural reasons, do not have equal power to negotiate behavior changes in a partner. Second, two male partners who alternate positions in anal or oral intercourse stand at equal risk of becoming infected unless they use condoms. In heterosexual vaginal intercourse, however, women are more likely than men to become infected. Thus, men engaging in heterosexual intercourse are at less risk than their female partners of becoming infected, and have less of a selfish motivation to use condoms.29

The idea that women lacked the capacity or power to negotiate safe sex in heterosexual relationships became foundational in understanding women’s risk not only in the United States but also in other parts of

186

Aziza Ahmed

the world as activists and epidemiologists transplanted feminist frames between various sites to understand the AIDS epidemic among women. An article in Social Science and Medicine in 1992, for example, makes female control central to the success of behavior change programs in the context of HIV prevention in sub-­Saharan Africa. The author states, “Control is thus an important dimension of women’s power. Lack of access to, and control of, resources for decision-­making, particularly in the sexual relationship, appear to be one key to the vulnerability of women and children in the AIDS epidemic.”30 The dominance feminist message, that women were always subordinate to men, was widely adapted in the context of international feminist organizing from organizing around women’s equality to gender-­based violence (GBV). The explanatory power of feminist narratives created the ability to transplant realities and converge women’s experiences into one grand story. This is amply illustrated by the website of UN Women, which proclaims precisely this program: Gender inequality contributes to the spread of HIV. It can increase infection rates, and reduce the ability of women and girls to cope with the epidemic. Often, they have less information about HIV and fewer resources to take preventive measures. They face barriers to the negotiation of safer sex, because of unequal power dynamics with men. Sexual violence, a widespread violation of women’s rights, exacerbates the risk of HIV transmission. Evidence suggests that marriage can be a major risk factor, especially for young women and girls.31

The simultaneous emergence of a feminist movement tackling violence against women buoyed the dominance feminist narrative of HIV. The early 1990s saw a surge of support for ending gender violence, including the 1993 Declaration on the Elimination of Violence against Women.32 The Declaration did not mention HIV, but this was soon to change. In 1994, the United States passed the first Violence Against Women Act (VAWA) as part of the Violent Crime Control and Law Enforcement Act of 1994.33 Although the 1994 VAWA did not have a global focus, it set the stage for several other pieces of legislation on women, gender, and violence, including the Trafficking Victims Protection Act of 2000 and the inclusion of GBV in the President’s Emergency Plan for AIDS Relief in 2003.34 In each of these documents,



Feminism, Law, and Epidemiology in the AIDS Response

187

women’s victimhood was a motivating factor behind legal reform agendas to end violence against women, and the possibility that women might contract HIV through intimate partner violence became increasingly important. Money and resources began to flow into domestic and international efforts to combat gender-­based violence.35 From an epidemiological perspective, the claim that GBV had a causal relationship to HIV had a more complicated history. Because sex work and injecting drug use were the initial explanations offered for women contracting HIV, epidemiologists did not raise questions of gender-­based violence in the early days of the epidemic. As the epidemic continued, however, epidemiologists began to explore causal pathways between violence and HIV.36 While most studies showed an association, others, controversially, claimed no association.37 The variation in outcomes was largely attributable to study design.38 The current understanding of VAW and HIV is that there is an association between the two—­that women living with HIV have higher reported rates of violence and that violence places women at an increased risk of contracting HIV.39 Whether there was an association between violence against women and HIV that could be demonstrated epidemiologically had material ramifications by way of resources and attention to the issue of GBV. This tension was articulated in a Lancet editorial by Sunita Kishor, then-­ director of the Demographic Health Surveys Program, a USAID-­f unded population data collection initiative. Kishor described the reaction of gender-­based advocates to a published study by Guy Harling and co-­ researchers that found no significant association between HIV status and their experience of intimate partner violence: When [Guy] Harling and colleagues’ article was first published in 2010, the equivalent of a shocked silence fell across the gender-­based violence community. The study had found no significant association between women’s HIV status and their experience of intimate partner violence in all of the sub-­Saharan African and three other countries for which Demographic and Health Survey data were available. The timing of publication of the report could not have been worse. Despite strong evidence of the negative effects of intimate partner violence on several aspects of women’s reproductive health, it was not until intimate partner violence was judged to be a risk factor for HIV that the gender-­based

188

Aziza Ahmed

violence community had finally gained traction in obtaining international commitment for the elimination of intimate partner violence. In fact, it was during this period that the community had finally been able to propose to the UNAIDS-­led HIV Monitoring and Evaluation Reference Group that intimate partner violence in the past 12 months become the UN General Assembly Special Sessions indicator to monitor the goal of gender inequality reduction. Although the proposed indicator was finally accepted, Harling and colleagues’ report had very nearly derailed these efforts.40

The Kishor editorial demonstrates the material importance of retaining the link between VAW and HIV as central to feminists in order to gain support of the international community. The necessity of proving an association between GBV and HIV not only validated the feminist project but also legitimated the interests of anti-­GBV advocates as a broader human rights and development issue.

Contesting and Evolving Feminist Positions in the AIDS Response Before considering the challenges of the heterosexual risk narrative, it is important to note at the outset that the fight for feminist inclusion in the AIDS response had numerous important positive outcomes. First, it drove money and resources toward women’s rights programs while also acknowledging the capacity of gender to shape public health outcomes.41 Second, gender and development programs inspired discussions on gender and sexuality in local, national, and global institutions—­encouraging transformations in gender and sexuality in the context of public health programs.42 Third, it had institutional impacts: although there continued to be resistance to gender mainstreaming and to considering gender, there is arguably a greater acceptance of the importance of including gender as a mode of analysis, data disaggregation, and a point of consideration when thinking through epidemics.43 Yet, borrowing from the work of Ian Hacking, we might consider how the production of narratives by feminists contribute to “making up people.” 44 In other words, what kind of subjects are produced by the feminist risk narrative in the context of HIV? What are



Feminism, Law, and Epidemiology in the AIDS Response

189

the consequences of the production of the feminist risk narratives both on feminist organizing and in the AIDS response? And, in turn, what are the categories and values promoted by the material effects of the flow of development dollars? I argue that we see two primary downsides of the heterosexual risk narrative: first, the fight to maintain the victimhood of heterosexual women in the epidemic and, in turn, the idea of a passive female sexuality as the foundation for feminist HIV interventions displace a counternarrative that women can be sexual agents. Where it has been successful, the counternarrative has been reserved for sex workers perceived to have some sexual agency. Yet, even in the context of sex work, feminists working within the anti-­trafficking frame, now called “carceral feminists” for their reliance on criminal justice, believing that all sex workers are trafficked, fought to extinguish the idea of an agentic heterosexual woman, and any material consequences of this idea including funding for sex-work projects.45 The second and related consequence of the heterosexual risk narrative is the legitimacy it offers within the broader development literature to ideas about men from the Third World, primarily men in the African context, that vilifies them for their bad behavior. The production of the malevolent Third World man has consequences: it is easily absorbed into the neoliberal development logic that prioritizes individual responsibility and a carceral approach over structural change.

The Passive Sexuality of Women As we have seen, for dominance feminists, a universal story of women’s subordination to men told a story of the social and cultural factors contributing to women’s risk of HIV. Failures of AIDS interventions were attributed to the inability of women to negotiate safe sex or to counteract cultural constraints on men’s willingness to utilize barrier methods like condoms. The heterosexual risk narrative strengthened the earlier invocation of women’s victimhood in the U.S. and global domestic violence movement.46 The risk paradigm offered by dominance feminist researchers and advocates solidified the idea that women are passive recipients of sex, with little to no ability to control or have agency in their own sexuality. As described by Shari Dworkin, a researcher at the Institute for Development Studies, the

190

Aziza Ahmed

dominance feminist AIDS narrative produced the primary subject of the AIDS epidemic: “She is the leading lady in the AIDS epidemic. She was under the surface, hidden, but finally emerged, rushed forward with newfound breath, born into existence with twin shoves: first, feminism; next epidemiological fathomability and visibility. She appeared in 1993 as vulnerable.” 47 Providing a more specific case of Ratna Kapur’s observations on the subjectivity of victimhood and its erasure of the complexity of women’s lives, the victimhood trope of dominance feminism in HIV/AIDS, legitimated by epidemiology, masks the complexity of women’s lives and sexualities in the context of the AIDS epidemic.48 The counternarrative on sexuality, deriving primarily from the sex workers movement, has its own history. Having been identified as a high-­risk group, sex workers sought to challenge an emerging public health discourse that stated that sex workers were vectors of transmission. Acknowledging that they were contracting HIV and dying AIDS-­related deaths, sex workers sought to reorient the role of sex work in the AIDS response. Rather than situate sex workers as recipients of public health interventions, the sex-work response would be that of leadership and engagement. Engaging sex workers as partners became a key “best practice” in the context of AIDS.49 Central to the strength of the sex worker response was the momentum of the harm-­reduction movement, which did not seek to eradicate the practice of sex work but rather sought to eliminate the harms associated with it, namely, the transmission of HIV.50 The harm-­ reduction movement in sex work mirrored the broader push for harm reduction in HIV prevention and drug use, which emerged early in the AIDS epidemic in response to abolitionist responses. Examples of where a harm-­reduction and sex-work program was successfully deployed to reduce the spread of HIV abound. The Brazilian government, for example, actively relied on sex workers to curb their nadespite its defunding of tional epidemic;51 the U.S. government—­ many sex-work projects—­celebrated sex-work interventions as integral to fighting the epidemic;52 and the Bill and Melinda Gates Foundation relied heavily on sex workers to stop the spread of HIV in India.53 While having limited impact on the lives of most sex workers in terms of basic structural needs, including housing and food, the programs reconfigured sex workers as integral, powerful change agents in the



Feminism, Law, and Epidemiology in the AIDS Response

191

context of an epidemic in which behavior change was otherwise slow and unwieldy. The image of the sex worker reborn—­agentic, powerful, and integral— rubbed against the heterosexual risk narrative and the dominance ­feminist view of women as passive and lacking power in sexual relationships, as well as against dominance feminist views on prostitution. Feminists split on the question of how to think about women’s narratives in the context of HIV. Many feminist organizations, including sex worker organizations, continued advocacy either on behalf of the woman-­v ictim or on behalf of sex workers. Some organizations merged the two, maintaining that it was possible to have both disempowered heterosexual women (typically described as wives and girlfriends) and empowered sex workers. In doing so, feminists deployed both a sex-­subordination model alongside a sex-­positive model of sexuality—­one that did not displace the potential for agency in heterosexual relationships but often ignored it in advocacy. As rates of HIV dropped among sex workers due to harm reduction, it was marriage that epidemiologists began to identify as a potential risk factor for contracting HIV. A small subset of feminist organizations, largely emanating from and emboldened by anti-­trafficking efforts, began to push criminal justice reforms in the context of HIV. This group of carceral feminists had a specific strategy in the context of AIDS programming: they attacked harm-­reduction efforts, which tended to focus on the decriminalization of the purchase and sale of sex, as furthering the oppression of women. Rather than harm reduction, they focused on harm elimination, or ending prostitution as a strategy to end the spread of HIV. The primary strategy to effectuate this change was borrowed from anti-­trafficking efforts—­to end the demand for commodified sex by arresting clients of sex workers. They read the discourse of the empowered sex worker critically: rather than empowered, sex workers were being managed through a new public health apparatus that was willing to subordinate women to achieve broader public health goals. Although marginalized in the broader AIDS response, which had fully taken on the sex-work position due to the success of interventions, the feminist anti-­trafficking groups worked to defund sex workers’ organizations by lobbying the U.S. Congress and allying with right-­wing organizations to push for the implementation of regulations that

192

Aziza Ahmed

resulted in defunding sex worker organizations.54 As institutions including the United Nations Development Program and Amnesty International increasingly supported sex workers’ rights and the decriminalization of the sale and purchase of sex, anti-­ t rafficking feminists and organizations, with Equality Now often in a leadership position, actively attacked those organizations for deepening the exploitation of women.55 The back-and-forth between carceral feminists and sex worker organizations and activists was largely an ideological battle over the way women’s sexuality should be perceived in HIV programs and in development generally. The goal of maintaining the dominance feminist perspective on HIV required squashing all other possibilities for women’s sexuality beyond the heterosexual risk narrative. As Ananya Roy argues in the context of producing women as good risk-­bearing subjects in microfinance initiatives, ideas about gender play a key role in configuring the Third World woman.56 In the context of the AIDS epidemic, perceptions and battles around gender and sexuality, as exported via U.S. government and foundation funding mechanisms taking the form of money, indicators, and public health interventions, shape the image of women’s sexuality as passive and motivate a range of programming based on this figuration.

Inverting the Heterosexual Risk Narrative Positing women as victims of an exploitative heterosexuality requires us to frame men as enacting masculine, patriarchal violence. Men are the primary modes of transmission between sex workers and wives and from girlfriend to girlfriend. Put in the language of dominance feminism, men, in living the privileges offered by patriarchy, become the perpetrators in the spread of HIV. This gendered and often racialized trope, now about men, most often African men, circulates widely in advocacy documents. The focus on violence against women in advocacy on women and HIV, both by public health and advocacy institutions, has two consequences related to men. First, it legitimates a larger discourse on men in the Third World as bad actors in development, 57 feeding the larger move inside of anti-­GBV efforts to mobilize criminal laws to regulate and govern the behavior of men and to route development resources away from men and toward women. Second, placing the blame for HIV transmission on



Feminism, Law, and Epidemiology in the AIDS Response

193

the individual behavior of men was a distraction from the larger structural interventions necessary to address the AIDS epidemic. The rhetoric of male malevolence picked up steam as attention shifted to women in development in the 1970s. As legal scholar Kerry Rittich argues, by the mid-­1990s, with the ongoing collapse of confidence that the Washington Consensus would bring desired growth came renewed attention to a broader consideration of the “social, structural, and human dimensions” of development.58 This large shift in development policy coincided with the rise of governance feminist institutionalization around sexual violence and GBV. In part this translated into making violence against women a priority not only for women’s safety, health, and well-­being but also for development. Several key development initiatives capitalized on the narratives of women-­in-­ development. Most prominently, the Grameen Bank asserted that its success as a microcredit program was largely due to lending money to women rather than men. Founder of Grameen Bank and Nobel laureate Mohammed Yunus and his coauthor argued that women spend money on their families while men spend money on themselves.59 Development and other international organizations were quick to recast men’s bad behavior, particularly violent behavior, as an issue not just of women’s rights but also of growth and development. The World Health Organization, for instance, intoned: “Violence is a major obstacle to development. Violence against women in particular hinders progress in achieving development targets.” 60 Combined, the heterosexual risk narrative and freewheeling assertions about Third World male malevolence resulted in the idea that men should be held responsible for their bad behavior—­particularly when it led to HIV. This is exemplified in a report by Human Rights Watch on Uganda: The accounts in this report reveal that Ugandan women are becoming infected with HIV, and will eventually die of AIDS, because the state is failing to protect them from domestic violence.  .  .  . Human Rights Watch interviewed Ugandan women who confront an environment that sustains unequal power relations, contend with persistent societal pressure to tolerate violence, and whose husbands and extended family routinely subject them to coercion and emotional abuse. . . . Women were also powerless to protect themselves from infection and were

194

Aziza Ahmed

unable to access HIV/AIDS services because their husbands physically attack and intimidated them, and did so with impunity. . . . The Ugandan government has failed in any meaningful way to criminalize, condemn, or prosecute violence against women in the home.61

HIV became yet another opportunity to recast two issues—­v iolence against women and HIV—­into a simplistic criminal law model that attempts to fix social problems through a reductionist approach that describes the world in terms of “bad actors” and “aggrieved victims.”62 The focus on men as bad actors and the emphasis on violence against women as a reason for women’s vulnerability fit the criminal law framing,63 while supporting the heterosexual risk narrative. The reliance on individual responsibility fit within the broader push in development toward individual responsibility over structural solutions. HIV became yet another reason to focus on individual behavior change in development programming—­whether through carceral or other means—­and avoid the more complicated, structural, political, and economic forces that shape health outcomes.

Conclusion The story of feminists in the AIDS response exemplifies the capacity of feminism to govern. Yet feminists were not all in agreement as to how to best understand women’s vulnerability in the context of the epidemic, nor did they see eye to eye about the legal transformations necessary to reduce women’s risk of contracting HIV. Competing feminist visions of women’s vulnerability emerged. In a struggle to understand why women contracted HIV, in the context of violence against women, a pro-­carceral, dominance feminist mode of feminism dominated largely due to its alignment with a development agenda that prioritized individual responsibility over structural solutions. This perspective, which undermined harm-­reduction efforts in the context of AIDS, also marginalized the anti-­carceral, sex-­positive feminist view that it was best to support harm-­reduction programs. This anti-­carceral view, which had the most traction in the world of public health, demanded that practitioners consider the broader structural fixes that contributed to poor health outcomes.



Feminism, Law, and Epidemiology in the AIDS Response

195

These debates are not over. As the epidemic continues, feminist ideas will remain central to how we imagine who is vulnerable to contracting HIV and how they are at risk. In turn, feminists will play a central role in imagining the possibilities for recrafting the laws and social norms affecting women at risk for and living with HIV.

Notes 1. Centers for Disease Control and Prevention, Morbidity and Mortality Weekly Review: HIV and AIDS—­United States 1981–­1987, https://www.cdc.gov/mmwr/preview​ /mmwrhtml/mm5021a2.htm#tab1 (accessed February 17, 2017). 2. U.S. Department of Health and Human Services, HIV/AIDS Surveillance Year-­ End Edition, January 1992, https://www.cdc.gov/hiv/pdf/library/reports/surveillance /cdc-hiv-surveillance-report-1992-vol-5-1.pdf (accessed February 17, 2017). 3. Editorial, “The Feminization of AIDS,” New York Times, December 13, 2004, http://www.nytimes.com/2004/12/13/opinion/the-feminization-of-aids.html (accessed February 18, 2017). 4. Theresa McGovern, “SP v. Sullivan: The Effort to Broaden the Social Security Administration’s Definition of Aids,” Fordham Urban Law Journal 21 (1993): 1083. 5. Janet Halley, Prabha Kotiswaran, Rachel Rebouche, and Hila Shamir, Governance Feminism: An Introduction (Minneapolis: University of Minnesota Press, 2018), x.  6. Ibid. 7. Shari Dworkin, “Who Is Epidemiologically Fathomable in the HIV/AIDS Epidemic? Gender, Sexuality, and Intersectionality in Public Health,” Culture, Health & Sexuality 7, no. 6 (2005): 615–­23. 8. See Laurie Garrett, The Coming Plague: Newly Emerging Diseases in a World out of Balance (New York: Farrar, Straus, and Giroux, 1994). 9. Ulrich Beck, “Living in the World Risk Society,” Economy and Society 35, no. 3 (2006): 329–­45. 10. Lawrence Altman, “Rare Cancer Seen in 41 Homosexuals,” New York Times, July 3, 1981, https://www.nytimes.com/1981/07/03/us/rare-cancer-seen-in-41-homo​ sexuals.html (accessed February 17, 2017). 11. Centers for Disease Control and Prevention, “Current Trends Update on Acquired Immune Deficiency Syndrome (AIDS)—­United States,” Morbidity and Mortality Weekly Review, September 24, 1982, http://www.cdc.gov/mmwr/preview /mmwrhtml/00001163.htm (accessed February 17, 2017). 12. Beck, “Living in the World Risk Society,” 329–­45. For additional readings on risk, see Sheila Jasanoff, “The Songlines of Risk,” Environmental Values 8, no. 2 (1999): 135–­52; Ulrich Beck and Johannes Willms, Conversations with Ulrich Beck, trans. Michael Pollak (Malden, Mass.: Polity Press, 2004). 13. Michael Fumento, The Myth of Heterosexual AIDS: How a Tragedy Has Been Distorted by Media and Partisan Politics (Washington, D.C.: Regenery Publishers, 1990); McGovern, “SP v. Sullivan,” 1083.

196

Aziza Ahmed

14. Thomas Quinn, Jonathan M. Mann, James W. Curran, and Peter Piot, “AIDS in Africa: An Epidemiologic Paradigm,” Science 234 (1986): 955–­64. 15. John Langone, “AIDS: The Latest Scientific Facts,” Discover 113 (December 1985): 27–­52; Aziza Ahmed, “‘Rugged Vaginas’ and ‘Vulnerable Rectums’: The Sexual Identity, Epidemiology, and Law of the Global HIV Epidemic,” Columbia Journal of Law and Gender 26, no. 1 (2013): 1–­57. 16. Fumento, The Myth of Heterosexual AIDS, 45–­47. 17. David Shaw, “The Epidemic: Did the Press Cry Wolf?,” New York Times, January 7, 1990, https://www.nytimes.com/1990/01/07/books/the-­epidemic-­d id-­t he-­press​ -­cry-­wolf.html. 18. Anonymous, “If I Could Be HIV Positive, Any Woman Can,” New York Times, June 16, 1990, http://www.nytimes.com/1990/06/16/opinion/l-if-i-could-be-hiv-pos​ itive-any-woman-can-659590.html?mcubz=3 (accessed September 1, 2017). 19. For histories of the women’s health movement, see Wendy Kline, Bodies of Knowledge: Sexuality, Reproduction, and Women’s Health in the Second Wave (Chicago: University of Chicago Press, 2010); Jennifer Nelson, More Than Medicine: A History of the Feminist Women’s Health Movement (New York: New York University Press, 2015). 20. Steven Epstein, Inclusion: The Politics of Difference in Medical Research (Chicago: University of Chicago Press, 2008). 21. See Alondra Nelson, Body and Soul: The Black Panther Party and the Fight against Medical Discrimination (Minneapolis: University of Minnesota Press, 2011). 22. See McGovern, “SP v. Sullivan,” 1083. Note that the case went beyond the inclusion of invasive cervical cancer as plaintiffs included men who also did not quality for supplemental income due to being determined ineligible. See also Sarah Schulman, “Interview with Terry McGovern, HIV Officer at the Ford Foundation,” in ACT­UP Oral History Project in New York (New York: New York Lesbian & Gay Experimental Film Festival, 2007), 37–­42; Rosetti v. Shalala, 12 F.3d 1216 (3d Cir. 1993). 23. Kenneth G. Castro et al., 1993 Revised Classification System for HIV Infection and Expanded Surveillance Case Definition for AIDS among Adolescents and Adults (Washington, D.C.: Centers for Disease Control and Prevention, 1993), http://www​ .cdc.gov/mmwr/preview/mmwrhtml/00018871.htm. 24. World Health Organization, “WHO Case Definitions in AIDS Surveillance in Adults and Adolescents,” Weekly Epidemiological Record 69, no. 37 (1994): 274. 25. Janet Halley, Split Decisions: How and Why to Take a Break from Feminism (Princeton, N.J.: Princeton University Press, 2008). 26. Nan Hunter and William B. Rubenstein, AIDS Agenda: Emerging Issues in Civil Rights (New York: New Press, 1992). 27. Jeanette Ickovics and Judith Rodin, “Women and AIDS in the United States: Epidemiology, Natural History, and Mediating Mechanisms,” Health Psychology 11, no. 1 (1992): 1. 28. Ibid. 29. Hunter and Rubenstein, AIDS Agenda. 30. Priscilla Ulin, “African Women and AIDS: Negotiating Behavioral Change,” Social Science & Medicine 34 (1992): 63–­73.



Feminism, Law, and Epidemiology in the AIDS Response

197

31. UN Women, “What We Do: HIV/AIDS,” http://www.unwomen.org/en/what -we-do/hiv-and-aids (accessed February 17, 2017). 32. UN General Assembly, Declaration on the Elimination of Violence against Women, 1993, A/RES/48/104. 33. Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-­322. 34. Victims of Trafficking and Violence Protect Act of 2000 (TVPA), Pub. L. No. 106-­386; United States Leadership against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, U.S. Code 22 (2003), § 2(25). 35. Department of Justice. “Grant Programs to End Violence against Women,” https://www.justice.gov/ovw/page/file/914131/download (accessed February 17, 2017); U.S. Department of State, “U.S. Government TIP Projects with Funds Obligated in Fiscal Year 2012,” https://2009-2017.state.gov/j/tip/rls/reports/2013/228856.htm (accessed February 17, 2017); White House, “United States Action Plan on Women, Peace and Security,” June 2016, https://www.usaid.gov/sites/default/files/documents /1868/National%20Action%20Plan%20on%20Women,%20Peace,%20and%20Security​ .pdf (accessed February 17, 2017). 36. Kyung-­Hee Choi et al., “Sexual Harassment, Sexual Coercion, and HIV Risk among U.S. Adults 18–­49 Years,” AIDS and Behavior 2, no. 1 (2017): 33–­40; G. M. Wingood and R. J. DiClemente, “The Effects of an Abusive Primary Partner on the Condom Use and Sexual Negotiation Practices of African-­American Women,” American Journal of Public Health 87 (1997): 1016–­18. 37. Sunita Kishor, “Intimate Partner Violence and HIV: Clearing up Confusion,” Lancet Global Health 3, no. 1 (2015): e4–­e5. 38. Ibid. 39. D. Durevall and A. Lindskog, “Intimate Partner Violence and HIV in Ten Sub-­ Saharan African Countries: What Do the Demographic and Health Surveys Tell Us?,” Lancet Global Health 3, no. 1 (2015): e34–­e43. 40. Kishore, “Intimate Partner Violence and HIV,” e4–­e5; emphasis added. 41. Victims of Trafficking and Violence Protect Act of 2000; United States Leadership against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, U.S. Code 22 (2003), para. 2(25). 42. United States Leadership against HIV/AIDS, Tuberculosis, and Malaria Act of 2003; Ahmed, “‘Rugged Vaginas’ and ‘Vulnerable Rectums,’” 1. 43. United States Leadership against HIV/AIDS, Tuberculosis, and Malaria Act of 2003. 44. Ian Hacking, “Making up People,” in Reconstructing Individualism: Autonomy, Individuality and the Self in Western Thought, ed. Thomas C. Heller (Stanford, Calif.: Stanford University Press, 1986), 222–­36. 45. For a description of “carceral feminism,” see Elizabeth Bernstein, “The Sexual Politics of the ‘New Abolitionism,’” Differences: Journal of Feminist Cultural Studies 18, no. 3 (2007): 128–­51. 46. For additional writing on feminism, feminist debates, and the domestic violence movement, see Aya Gruber, “The Feminist War on Crime,” Iowa Law Review 92, no. 3 (2006): 741; Donna Coker, “Crime Control and Feminist Law Reform in Domestic Violence Law: A Critical Review,” Buffalo Criminal Law Review 4 (2001):

198

Aziza Ahmed

801–­60; Leigh Goodmark, “Should Domestic Violence Be Decriminalized?,” Harvard Journal of Law and Gender 40 (2017): 53. 47. Dworkin, “Who Is Epidemiologically Fathomable in the HIV/AIDS Epidemic?” 48. Ratna Kapur, “The Tragedy of Victimization Rhetoric: Resurrecting the ‘Native’ Subject in International/Post-­Colonial Feminist Legal Politics,” Harvard Human Rights Journal 15 (2002): 1. 49. United States Agency for International Development, Sangram’s Collectives: Engaging Communities in India to Demand Their Rights (Washington, D.C.: AIDStar One Case Studies, 2011). 50. Aziza Ahmed, “Trafficked? Aids, Criminal Law and the Politics of Measurement,” University of Miami Law Review 70 (2016): 96. 51. Larry Rohter, “Prostitution Puts U.S. and Brazil at Odds on AIDS Policy,” New York Times, July 24, 2005, https://www.nytimes.com/2005/07/24/world/americas​ /prostitution-puts-us-and-brazil-at-odds-on-aids-policy.html (accessed February 10, 2017). 52. United States Agency for International Development, Sangram’s Collectives. 53. āvāhan, The India AIDS Initiative: The Business of HIV Prevention at Scale (New Delhi: Bill and Melinda Gates Foundation, 2008). 54. Aziza Ahmed and Meena Seshu, “‘We Have the Right Not to Be Rescued’: When Anti-­Trafficking Programmes Undermine the Health and Well-­Being of Sex Workers,” Anti-­Trafficking Review 1 (2012): 149–­68; Joanna Busza, “Having the Rug Pulled from under Your Feet: One Project’s Experience of the U.S. Policy Reversal on Sex Work,” Health Policy and Planning 21 (2006): 329–­32. 55. Equality Now, “United Nations: Listen to Survivors—­Don’t Jeopardize Efforts to Prevent Sex Trafficking,” September 20, 2013, http://www.equalitynow.org/sites​ /default/files/UN_51_1_EN.pdf (accessed February 17, 2017). 56. Ananya Roy, “Subjects of Risk: Technologies of Gender in the Making of Millennial Modernity,” Public Culture 24, no. 1(66) (2012): 131–­55. 57. Nicholas Kristof, “Moonshine or the Kids?,” New York Times, May 22, 2010, http://www.nytimes.com/2010/05/23/opinion/23kristof.html (accessed February 17, 2017); Nicholas Kristof and Sheryl and WuDunn, “The Women’s Crusade,” New York Times, August 17, 2009, https://www.nytimes.com/2009/08/23/magazine/23Women​ -t.html (accessed February 17, 2017). 58. Kerry Rittich, “The Future of Law and Development: Second Generation Reforms and the Incorporation of the Social,” in The New Law and Economic Development: A Critical Appraisal, ed. David Trubek and Alvaro Santos (Cambridge: Cambridge University Press, 2006). 59. Muhammad Yunus and Karl Weber, Creating a World without Poverty: Social Business and the Future of Capitalism (New York: PublicAffairs, 2007). 60. World Health Organization, “Addressing Violence against Women and Achieving the Millennium Development Goals, 2005,” http://www.who.int/gender /documents/MDGs&VAWSept05.pdf?ua=1 (accessed February 17, 2017). 61. Human Rights Watch, Just Die Quietly: Domestic Violence and Women’s Vulnerability to HIV in Uganda (New York: Human Rights Watch, 2003), https://www​ .hrw.org/reports/2003/uganda0803/uganda0803.pdf.



Feminism, Law, and Epidemiology in the AIDS Response

199

62. Allegra McLeod, “Exporting U.S. Criminal Justice,” Yale Law & Policy Review 29 (2010): 83–­164. 63. Deborah Weissman, “VAWA @ 20: The Politics of Pretext: VAWA Goes Global,” City University of New York Law Review Forum 18 (2014): 37; Rashmi Goel and Leigh Goodmark, Comparative Perspectives on Gender Violence: Lessons from Efforts Worldwide (Oxford: Oxford University Press, 2015); Patricia Erwin, “Exporting U.S. Domestic Violence Reforms: An Analysis of Human Rights Frameworks and U.S. ‘Best Practices,’” Feminist Criminology 1, no. 3 (2006): 188–­206.

CHAPTER 9

Contesting Feminism’s Institutional Doubles Troubling the Security Council’s Women, Peace and Security Agenda DIANNE OTTO

In early 2000, feminist peace activists embarked on an ambitious new strategy of engagement with institutional power, from within rather than from outside the international military and diplomatic establishment, when the Women’s International League for Peace and Freedom (WILPF) led a coalition of nongovernmental organizations (NGOs) hoping to persuade the UN Security Council to adopt a thematic resolution on women, peace, and security (WPS).1 Previously, the Council had shown almost no interest in women except, commencing with the 1990s conflicts in the Balkans, as victims of conflict-­related sexual violence.2 That the Council responded positively to the efforts of the NGO Working Group on Women, Peace and Security (hereafter referred to simply as the NGO Working Group)3 and unanimously adopted Resolution 1325 (SCR 1325) on October 31, 2000,4 came as a surprise to me, although, as I will explain, I have since realized that there was much for the Council to gain by (re)presenting itself as feminist-­friendly.5 I have also been astonished by the remarkable institutional productivity that has followed the adoption of SCR 1325. Not only has it prompted annual Security Council debates on WPS and annual Secretary-­General’s Reports since 2004; it has led to a further seven resolutions on this theme (as of October 2016). Cascades of gender policies, training manuals, checklists, indicators, benchmarks, targets, studies, and reports have also followed, as well as many new positions established for “gender experts,” including the special representative of the secretary-­general on sexual violence in conflict6 and 200



Contesting Feminism’s Institutional Doubles

201

Gender Advisory Teams deployed by UN Peacekeeping to all multidimensional peacekeeping operations.7 In an often uneasy relationship with this surge of institutional developments, many local women’s groups in postconflict settings have tried to lever the resolutions to draw attention and attract funding to issues that matter most to them,8 asserting what I will call “feminist logics of social justice and peace.” I associate such feminist logics with grassroots struggles that pursue a holistic vision of gender justice in the economic, cultural, and political spheres and a world without weapons and wars, as can be seen in the work of WILPF since its formation in 1915, its sections today in thirty-­three countries,9 and the more recently formed Post-­2015 Women’s Coalition of 168 community-­based and international organizations from around the world.10 This feminist logic can best be understood as continually produced, contested, reconsidered, and reenvisioned through global networks of circulating feminist theories and practices, rather than as a set of relatively autonomous and competing strands of feminist thought, although it is always instructive, and often important, to identify the dominant strands. As I see it, this logic seeks to operate locally and globally, outside and within the limits of legal and governmental institutions, negotiating the uneasy tensions between “compliance” with governmental methods and processes in the hope of making feminist gains and “resistance” to the inequitable, masculinist, imperial, and military framework that is institutionally embedded.11 In order to support the activism of grassroots, national, and regional feminist groups, the WILPF in New York has translated SCR 1325 into dozens of languages, organized workshops and published manuals to alert local activists to the advocacy tools that have been created, and produced the monthly Women, Peace and Security E-­News, which keeps readers abreast of institutional developments as well as what other activists are doing.12 The NGO Working Group closely monitors implementation by the Security Council and produces reports and monthly action points (MAPs) for feminist advocates, providing a bridge between local feminists and human rights defenders and UN policy and decision makers.13 Yet despite these and many other efforts to give effect to feminist logics of social justice and peace through the Security Council’s WPS agenda, feminist ideas have only been selectively engaged, and even

202

Dianne Otto

then, most of the putative feminist outcomes promised by the resolutions have yet to be realized at the local level, including increased women’s participation in formal conflict resolution and peace-­building processes14 and laying the groundwork for sustainable gender-­inclusive political, economic, and social arrangements in the transition to peace.15 Instead, as in many other post–­Cold War feminist projects in international law, the single issue of sexual violence has dominated, (re)casting women as needing the Council’s protection, both during armed conflict and in its aftermath, rather than as active participants in its peace-­making and peace-­building endeavors. A Governance Feminism (GF) framework of analysis provides a useful lens through which to take stock of what has been achieved in terms of promoting a transformative feminist logic on the one hand and the damage that has been done to feminist goals and aspirations on the other. Janet Halley and her colleagues have coined the term GF to describe the way that feminist “experts” and certain feminist ideas have become “installed” in legal-­institutional power, most notably in the development of international criminal law aimed at prosecuting sexual violence, as well as international and domestic laws regulating sex work and sex trafficking.16 They criticize sexual violence–­focused GF (SV GF) for its reliance on state-­centered forms of top-­down power,17 its failure to be critically self-­reflective,18 and its promotion of the “sexual-­subordination” or “dominance” feminism of Catharine MacKinnon,19 which always and only “carries a brief” for (cis)women20 and has focused the “feminist” work of institutions on sexual violence as the primary locus of women’s oppression. Within this range of concerns, I am interested in understanding why certain aspects of the broader feminist project appeal to international institutions, what feminist aspirations are sacrificed in the trade-­offs involved in institutional adoption, and how this capitulation can be contested by feminists both inside and outside those institutions. I have always been ambivalent about describing feminist ideas, once taken up and re-­signified by institutions as their own, as still “feminist,” which is why Nancy Fraser’s image of feminism’s “institutional double” appeals to me.21 While fashioned from radical ideas that have emerged from feminist struggles for emancipation, institutionalization unmoors them from their political origins and attempts to divest them of their liberatory content through the technocratic processes of



Contesting Feminism’s Institutional Doubles

203

calculation, measurement, and management. The result has been described by Fraser, in the context of neoliberalism’s endorsement of certain feminist ideas, as feminism’s “strange shadowy version,” its discursive “uncanny double,” which can be “neither simply embrace[d] nor wholly disavow[ed].”22 Yet, as Judith Butler reminds us, the processes of re-­signification are never complete and are therefore always contestable.23 It is this contestation that is of interest to me and how it can work to trouble the traction of governmentalized feminism and create new footholds for feminist politics to take root. I do not want to deny the feminist lineages of the WPS agenda but rather to highlight the continuing importance of feminist political struggles both inside and outside international institutions and, in so doing, draw attention to the precariousness of feminist logics of social justice and peace in the face of its institutional double in the form of GF. I want to explore the opportunities for re-­signification, as well as the threats, that the institutionalization of some feminist ideas through the Security Council’s WPS agenda presents for feminist hopes of a more democratic, participatory, egalitarian, and nonviolent international order, articulated over a hundred years ago by the feminist peace advocates who established the International Committee of Women for Permanent Peace in 1915, which was renamed WILPF in 1919.24 I start by examining the Security Council’s preoccupation with sexual violence in four of the eight WPS resolutions, which is also a feature of GF elsewhere in international law and institutions. I argue that, in this context, the focus on women’s sexual vulnerability has enabled a consolidation of protective stereotypes of women that underpin and justify military ways of thinking, which reassert what Iris Marion Young has described as the “logic of masculinist protection,”25 which does a lot of useful symbolic work for the Security Council, while seriously undermining feminist logics of social justice and peace. Next, I discuss the other four WPS resolutions, which I refer to as the “women’s empowerment resolutions.” While these resolutions are also informed by SV GF in their attention to sexual violence, my argument is that they have also created footholds for other strands of feminist thinking—­informed by postcolonial, materialist, and queer perspectives—­to challenge the power of GF to dictate institutional feminist priorities. I then go on to argue that despite the dominance of SV GF, more transformative feminist ideas are slowly gaining ground,

204

Dianne Otto

because of the vision and activism of grassroots feminist groups, organized often through regional and international NGOs like WILPF and the NGO Working Group. The tenacity of bottom-­up feminist logics of social justice and peace is evident in the Global Study, which was undertaken to mark the fifteenth anniversary of the adoption of SCR 1325,26 and the Civil Society Survey that was commissioned to inform the study.27 I conclude that grassroots activism, though vital, is not enough. For feminist logics of social justice and peace to make inroads into international institutions by re-­signifying discursive institutional practices, support from “friends” within governmental and legal institutions is necessary, which always involves compromise and retrenchment and, in the contemporary moment, a reckoning with SV GF. Even then, feminist logics may be lost in translation, but this is a continuing struggle.

The Persistence of the Logic of Masculinist Protection: The Sexual Violence Resolutions Feminists working both inside and outside governmental institutions greeted the adoption of SCR 1325 with enthusiasm.28 It was no doubt a significant feminist achievement, having been conceived, lobbied for, and first drafted by activists.29 Yet, despite being welcomed by many members of the Security Council in the preceding Open Debate on WPS, as offering the means for including women as “equal participants” in securing international peace and security,30 it was not long before the Council’s attention reverted to its earlier preoccupation with women as victims of sexual violence. Following the adoption of SCR 1325, the calls from feminist activists for a follow-­up resolution that would robustly promote its implementation gathered momentum. In a classic illustration of the need to be careful about what you wish for, SCR 1820 was finally adopted in 2008.31 This resolution almost completely displaced the more empowered representations of women in SCR 1325 by focusing solely on the issue of protecting women (and children) from sexual violence. By 2009, even the secretary-­general was expressing concern that “women continue to be considered as victims and not as key partners in addressing and resolving situations of armed conflict.”32



Contesting Feminism’s Institutional Doubles

205

Sponsored by the United States (under the Bush administration) during its turn in the rotating presidency of the Security Council, with strong U.K. support,33 SCR 1820 condemns the use of sexual violence during armed conflict, particularly when used as a “tactic of war” or as part of a widespread or systematic attack against civilians,34 as well as in postconflict peacekeeping operations and refugee camps.35 Sexual violence is treated as a distinctively harmful feature of armed conflict, and the “solution” lies largely in ending impunity by disciplining and/or prosecuting perpetrators,36 and by prohibiting amnesties for sexual violence crimes.37 It is striking how the language of women’s “protection” sidelines the language of women’s “rights” that was so prominent in SCR 1325.38 In the operative provisions of SCR 1820, the single brief reference to encouraging women’s active participation in decision-­making related to securing and maintaining international peace and security appears almost as an afterthought.39 What else remains of the SCR 1325 participation agenda is limited to consulting women about the design and delivery of appropriate sexual violence protection mechanisms.40 The disempowering effects for women of the logic of masculine protection are everywhere in evidence. There are many markings of SV GF in SCR 1820. Not only does the problem of sexual violence crowd out other concerns that may be of importance to women, but the apocalyptic tenor of the Security Council’s anxiety about sexual harm is underlined by its call for the “evacuation of women and children under imminent threat of sexual violence,” 41 which grants sexual violence victims (presumed women and children) a new position of privilege in communities devastated by armed conflict. This privileging continues with urging national institutions to provide victims with “sustainable assistance” 42 and regional bodies to consider “policies, activities and advocacy” for the benefit of victims.43 As Karen Engle has argued, this approach treats sexual violence as “the quintessential harm of war,” as even worse than death.44 By implication, the suffering of other victims is accorded less priority, including others (men, intersex, trans, third gender, and often boys as well) who may also be at risk of conflict-­related sexual violence. The invisibility of other victims can be attributed to the SV GF insistence that it is always women who are the victims of men’s (sexual) domination and that it is the job of feminists to carry a singular brief for them.

206

Dianne Otto

The Security Council’s disproportionate concern with sexual harms suffered by women, and its focus on prosecuting perpetrators (ending impunity), provides a compelling example of the power of dominance feminism to resonate with governmental and institutional agendas. Further, that SCR 1820 was drafted and championed by a conservative U.S. administration illustrates the particular influence and transportability of the U.S. form of SV GF.45 Yet the logic of masculine protection works here in a particularly insidious register, distinguishing SV GF in this context from how it may operate in some other institutional arenas. As Young has observed, the paternalistic position of the masculine protector not only “puts those protected, paradigmatically women and children, in a subordinate position of dependence and obedience” but also demands loyalty and gratitude from them.46 This paternalism presents tricky dilemmas for feminists seeking to influence the WPS agenda, because the quid pro quo of having their concerns taken seriously is their gratefulness and “compliance.” 47 As one of the feminist activists in the NGO Working Group told me, the hope in supporting the adoption of SCR 1820 was that sexual violence would provide a bridge to a broader feminist politics.48 Yet the idea that sexual violence is, at least for women, the quintessential harm of war continues as the driving theme in the three subsequent sexual violence resolutions, which are also devoted exclusively to addressing the problem of conflict-­related sexual violence: SCR 1888 (2009), SCR 1960 (2010), and SCR 2106 (2013).49 Interestingly, the idea that women and children who are potential victims of sexual violence be given priority in evacuation plans does not reappear—­indicating some retrenchment from apocalyptic thinking. In all four resolutions, sexual violence is treated as a self-­standing feature of armed conflict. Its use is condemned not only as a “tactic of war” but also as an impediment (threat) to the restoration of international peace and security.50 This leads the Security Council to express “its readiness . . . to, where necessary, adopt appropriate steps to address widespread or systematic sexual violence,”51 which, in suggesting that sexual violence could provide a justification for military intervention, potentially expands the legal justifications for the use of force (jus ad bellum)52—­a move that is anathema to feminist goals of disarmament, demilitarization, and positive peace.53 Notably, in demanding that all parties to armed conflict protect women, the only form of harm the resolutions are



Contesting Feminism’s Institutional Doubles

207

concerned with is sexual violence,54 despite the many forms of brutality, deprivation, and mistreatment of civilian women expressly recognized and prohibited by the laws that regulate the conduct of war (jus in bello).55 Ironically, this concern has been raised by both Russia and China in Security Council debates on conflict-­related sexual violence, as they take the opportunity (now in a post–­September 11 world) to assert their opposition to U.S.–­U.K. alliances. In so doing, Russia argued for a “comprehensive approach” that attends to all the forms of violence that women suffer as a result of armed conflict,56 and China questioned the wisdom of treating sexual violence as a “stand-­alone issue” and urged attention to conflict prevention as providing the only “real protection for women and their rights.”57 In the context of postconflict peace building, the sexual violence resolutions all endorse the full implementation of the secretary-­general’s zero tolerance of sex policy,58 another “win” for SV GF and the logic of masculine protection. Adopted in 2003, the policy,59 which binds all UN employees, was a response to continuing scandals about peacekeeping personnel, including humanitarian workers, engaging in sexual exploitation and abuse of local women and girls.60 The policy’s goal is to “further protect the most vulnerable populations, especially women and children.” 61 As I have argued elsewhere, the zero-­tolerance policy makes almost no effort to distinguish between sex that is exploitative or abusive and sex that is not.62 No substantive or consequential distinction is drawn between consensual sex (like sexual relationships and sex work), on the one hand, and forced sex (like rape and forced prostitution), on the other. This approach is clearly shaped by SV GF, particularly the dominance feminism of MacKinnon, who argues that heterosexual sex practiced under conditions of women’s inequality is the eroticization of male dominance and female subordination.63 The harm is sex itself. Like the sexual violence resolutions, the zero-­ tolerance policy does not recognize that others, besides ciswomen, may also be victims, and it does nothing to address the material conditions in peacekeeping economies that make sexual exploitation and abuse more likely. It relies instead on strengthening disciplinary and criminal measures to end impunity and on (re)training peacekeepers. The protective representations of women and girls invoked by the policy lend UN support to the protective regulation of sexuality and gender norms in postconflict societies, making the possibility of

208

Dianne Otto

feminist economic and social transformation—­and peace—­even more remote. So, what institutional purposes are being served by this heightened concern for the safety of sexual violence victims? Why have their lives come to matter more than the lives of others? In my view, the answer to these questions is that prioritizing the rescue of paradigmatic victims—­women and children who are at risk of sexual violence—­ invokes the logic of masculine protection, which does a lot of symbolic work for the Security Council. This logic provides reassurance about its commitment to the collective good and the benevolence of its motivations, even as it pursues its hyper-­masculine approach of militarizing and securitizing “peace.”64 In this protective guise, the Council’s exercise of unaccountable top-­down power and support for militarism are made more palatable—­even desirable—­and many feminist projects trying to address sexual violence are unwittingly drawn into its service. Thus, feminism’s institutional double in the form of GF helps to legitimate and justify expansion of the Council’s power by harnessing feminist ideas to militarism and carceral law, which also serves to deflect feminist criticism as disloyalty and ingratitude. By prioritizing the goal of making wars and postconflict transition “safer” for women by ending impunity for perpetrators, the Council diverts attention from other feminist goals, notably the achievement of general disarmament and positive peace. Another corrosive consequence for a feminist logic of justice and peace is that, in all the sexual violence resolutions, women’s participation is reduced to helping address the problem of sexual violence. Employing more women in peacekeeping military and police contingents is promoted, not as an equal opportunity measure, but as a way to provide better protection for local women and children against sexual violence65 and increase their willingness to report it.66 Further, women’s organizations are called upon to persuade parties to armed conflict to address sexual violence as if this was the ultimate goal, rather than bringing armed conflict to an end.67 These measures treat women soldiers, police, and peace builders as if they are “naturally” predisposed to attending to the needs of sexual violence survivors, removing responsibility from men, even or especially those men (soldiers, police, and community leaders) who should be expected to provide support.68 Confining women’s participation to feminized issues also



Contesting Feminism’s Institutional Doubles

209

legitimates the masculinist decision-­making processes that have always been associated with the (manly) subject of securing and maintaining international peace and security. As if to underline this point, SCR 2106, adopted in 2013, takes the step in its preamble of enlisting men and boys to assist in combating all forms of violence against women.69 This is the first and only time that explicit reference is made to men in the sexual violence resolutions, and its purpose is to urge and reaffirm their protective role. However, this bleak assessment of the transformative work that is being done by the sexual violence resolutions is not the whole story. There are also signs of contestation in the resolutions and the influence of other strands of feminist thinking, which are more concerned with addressing the structural causes of sexual violence and with questioning the gender dualism and hierarchies that characterize SV GF. The second sexual violence resolution, SCR 1888, also sponsored by the United States during its next turn in the presidency rotation (in 2009), was crafted under the Obama administration, with Hillary Clinton serving as secretary of state. As a result, there are some subtle shifts, with the introduction of the language of “survivors” (rather than victims)70 and references to the need for “redress” for their suffering71 and “socio-­economic reintegration,”72 which starts to challenge SCR 1820’s script of women’s unremitting sexual vulnerability and adopts a more capacious notion of justice that encompasses its economic and social, as well as legal, dimensions. Further, there is a glimmer of recognition that other civilians, not only women and girls, may be victims of sexual violence.73 These small signs of resistance to the protective brief-­ carrying-­for-­ciswomen focus of SV GF gain further momentum in the next two resolutions, which treat sexual violence more as an issue of women’s structural inequality (of concern to materialist and postcolonial feminisms) and recognize that “civilians,” which can be taken to include men and boys, and perhaps other gender identities, may also be sexual violence victims—­a foothold, perhaps, for queer feminism. Bringing an end to the sexual violence that occurs during armed conflict, and in its wake, is a long-­standing feminist demand and is clearly of great importance to local women’s groups in conflict and postconflict situations.74 However, it has never been the only, and seldom the most important, issue. The 1915 Hague Women’s Peace Congress, which founded WILPF, specifically rejected the idea that the

210

Dianne Otto

main goal was to make war safer for women, emphasizing bringing an end to armed conflict as the primary project.75 Recently, the Civil Society Survey of several hundred groups working on WPS issues found that the top advocacy priority was to increase women’s participation in conflict prevention, peace building, peace negotiations, and recovery (38 percent).76 This was followed by the promotion of laws that advance gender equality and women’s rights (28 percent), increasing women’s participation in local and community decision-­making (25 percent), and only then the prevention and protection of women and children from sexual and gender-­based violence during conflict (23 percent).77 This rating of priorities was confirmed by the Global Study requested by the Security Council, on the fifteenth anniversary of the adoption of the first WPS resolution (discussed later), which found that, in Africa and Asia, while the importance of ending impunity for sexual violence was acknowledged, “more often the conversation would turn to reparations, livelihoods and economic empowerment.”78 Yet the issue of sexual violence has trumped all other feminist issues in the Security Council’s WPS agenda and thus shaped the institutional policies and programs it has generated. This outcome is the result of many contestations: between the geopolitical interests of the permanent five Security Council members (P5);79 between SV GF and other feminist perspectives proffered by gender experts and policymakers within the UN’s sprawling institutions; and between GF and feminist movements and networks outside the institutional framework of the UN—­to name just a few. That traces of the feminist logic of justice and peace are more evident in the recent resolutions is a hopeful sign that feminist redistributive and anti-­militaristic goals are still able to survive, despite the dominance of the logic of masculinist protection and its alliance with SV GF.

Holding on to Feminist Logics of Social Justice and Peace: The Women’s Empowerment Resolutions As already noted, the starting point for the WPS agenda was SCR 1325, the first of the women’s empowerment resolutions, which promised a recalibration of the Security Council’s conservative gender script by recognizing women’s “important role” in preventing and resolving conflicts and in peace building.80 The first four operative paragraphs



Contesting Feminism’s Institutional Doubles

211

are concerned with increasing women’s participation in conflict-­related decision-­making and peace processes,81 a long-­standing demand of feminist peace movements.82 The Council declares its own “willingness” to ensure that its missions consult with “local and international women’s groups”83 and calls for the adoption of a “gender perspective” by all actors when negotiating and implementing peace agreements, including measures that support “local women’s peace initiatives.”84 Recognizing women’s human rights is a key theme,85 although such recognition can also serve institutional rather than feminist purposes.86 Attention is also drawn to many of the ways women are engaged in or affected by armed conflict, not only as victims of sexual violence. Women are recognized as peacekeeping personnel (military observers, civilian police, human rights defenders, and humanitarian workers),87 as peace advocates and peace builders,88 as refugees,89 as former combatants,90 and as civilians needing postconflict repatriation, resettlement, and reintegration.91 These references provided some reason to hope that a feminist logic of social justice and peace may have found its way into the mind-­set of the Council, although SCR 1325’s silences about the long-­standing goals of general disarmament92 and failure to address the underlying structural inequalities that cause armed conflict93 suggest otherwise. Despite its important calls for women’s inclusion and empowerment, SCR 1325 also bears the markings of SV GF. The most clearly obligatory language is used in relation to sexual violence. All parties to armed conflict are called upon to take “special measures” to protect women and girls from gender-­based violence, “particularly rape and other forms of sexual abuse,”94 and it is emphasized that states have a responsibility to “end impunity” and exclude those crimes “where feasible” from amnesty provisions.95 While “men” are not mentioned in any of SCR 1325’s eighteen operative paragraphs, they figure silently but powerfully as perpetrators of sexual violence and, in institutional form, as the source of women’s protection. Thus, rather than making a break with SCR 1325, the subsequent series of sexual violence resolutions that I have just discussed could be characterized as amplifying one of its main themes. Among the seven WPS resolutions that have followed, three seek to hold on to the broader agenda laid out by SCR 1325, emphasizing the importance of women’s participation and the recognition of women’s

212

Dianne Otto

rights in postconflict state building (SCR 1889 [2008], SCR 2122 [2013] and SCR 2242 [2015]).96 The language of women’s “empowerment” is a distinctive feature of these resolutions,97 in contrast to the focus of the sexual violence resolutions on women’s vulnerability. The importance of women’s participation continues as a dominant theme. Many provisions emphasize the need for increased participation in formal conflict resolution and peace processes in national, regional, and international institutions and mechanisms, including as UN special representatives and at all stages of peace support operations,98 strengthening footholds for a feminist logic of justice and peace. The most recent resolution in this string, SCR 2422, adopted in 2015, calls for women’s participation to be “meaningful”99 and extends the call for participation and empowerment to other areas of the Security Council’s work: in developing counterterrorism strategies,100 combating the transfer and accumulation of illicit arms,101 and dealing with the impacts of climate change and health pandemics.102 The conflict resolution and peacemaking work of local women’s organizations is repeatedly acknowledged, and the need to consult and draw them into formal processes is continually emphasized.103 Further, consultation with “socially and/or economically excluded groups of women” is specifically urged in SCR 2122,104 creating a foothold for including the experience of nonelite women, and SCR 2422 emphasizes country-­specific consultations,105 moving against the one-­size-­fits-­a ll tendencies of SV GF. Stronger footholds for materialist and postcolonial feminist goals of realizing women’s economic and social rights in postconflict peace building and addressing the structural and environmental inequalities that rank high among the causes of armed conflict are also carved out in the women’s empowerment resolutions that follow SCR 1325. Attention is drawn, in SCR 1889, to the need for “concrete strategies” to improve women’s socioeconomic conditions and rights through, inter alia, access to education, income generation, and basic health services, including “sexual and reproductive health and reproductive rights,”106 which run counter to the sexual negativity and stereotyped conservatism of the sexual violence resolutions. In its preamble, SCR 2122 affirms that “sustainable peace” requires a holistic approach that integrates political, security, development, human rights, the rule of law, and justice activities.107 Most recently, SCR 2422 seeks to “integrate” the WPS agenda more broadly into the UN’s development and



Contesting Feminism’s Institutional Doubles

213

humanitarian programs, calling for increased international development assistance for implementation108 and access to the “full range of medical, legal, psychosocial and livelihood services” provided by humanitarian programs.109 Reference is also made to the work of the Committee on the Elimination of Discrimination against Women on clarifying the obligations in conflict and postconflict situations of states party to the Convention on the Elimination of All Forms of Discrimination against Women.110 Yet there is still no reference to the importance of general disarmament, despite the Security Council’s UN Charter responsibilities to ensure “the least diversion for armaments of the world’s human and economic resources.”111 And the single reference to “men and boys” in the empowerment resolutions, in the preamble to SCR 2422, urges their engagement “as partners” in promoting women’s participation,112 leaving the WPS agenda still impervious to the critique of queer feminists, which challenges the hetero-­masculinist mind-­set of the entire military-­diplomatic establishment. So, what institutional purposes do the empowerment resolutions serve? The preamble to SCR 2422 suggests that, for the Security Council, the purpose is primarily instrumental. Note is taken of the “substantial link” between women’s “meaningful involvement” and the “effectiveness and long-­term sustainability” of conflict prevention, conflict resolution, and postconflict rebuilding efforts.113 Failing to fully implement the WPS agenda is regarded as having a “detrimental impact” on the maintenance of international peace and security.114 That the empowerment of women can help further the Council’s own (militaristic) peace-­making and peace-­building goals is echoed in the speech made by U.S. ambassador to the UN, Samantha Power, following adoption of SCR 2422 in 2015, when she claimed as “a fact” that women’s inclusion “leads to more equitable, sustainable and resilient results.”115 Whether or not this is true, the resolutions are contributing to the Security Council’s social capital, which has enabled its expanding power, beyond matters that fall strictly within its mandate.116 One example is the Council’s demand, made soon after September 11, that states adopt draconian “anti-­terror” criminal legislation, an enterprise that in earlier times would have required the negotiation and ratification of a multilateral treaty. In contrast, China, while expressing support for increased women’s participation, picks up on the importance of conflict prevention, urging that “both symptoms and

214

Dianne Otto

causes” need to be tackled, arguing that the focus should be on “capacity-­building and economic development” and changing the “mindsets that inhibit women’s peace and development.”117 China has also joined with the Russian Federation to express concern about the expanding ambitions of the WPS agenda, urging instead better coordination with other UN bodies so that each “can play its own role”118 and “existing divisions of labour” are maintained.119 The Russian Federation makes the point that “specific violations of (women’s) human rights . . . should be considered in specialized international bodies.”120 The differing perspectives of the P5 are clearly linked to their own geopolitical interests but are also “uncannily” reflective of some strands of feminist thinking. Yet these echoes of feminist logic are heavily compromised by being harnessed to competing superpower agendas. Despite the focus on empowerment, this group of resolutions still bears many markings of SV GF. They all carry a brief solely for “women” (and girls), ignoring the gendered issues that may arise for men and other gender identities in the context of armed conflict and its aftermath,121 and all the references to sexual violence are expressed in the mode of masculinist protection, pursuing criminalization and punishment,122 considering the use of sanctions,123 and supporting the secretary-­general’s zero tolerance of sex policy in peace support operations.124 The preamble of SCR 2422 refers to sexual violence not only as a “tactic of war”125 but also as a “tactic of terrorism,”126 further broadening possible new justifications for the use of force in the name of protecting women. Sexual violence was the dominant concern of both the United States and the United Kingdom in their speeches supporting the adoption of SCR 2422, despite its character as a women’s empowerment resolution.127 Yet the empowerment resolutions have had some important effects, beyond simply serving the Security Council’s own interests. They have, with some success, ensured that the importance of women’s political and economic participation and leadership is acknowledged, provided a stronger platform for ensuring that women’s rights are substantively recognized and protected in postconflict reconstruction, and created new openings for integrating gender issues across all facets of the Council’s work and in the UN’s development, human rights, and humanitarian programs. New institutional footholds for the promotion of feminist logics of social justice and peace have undoubtedly been



Contesting Feminism’s Institutional Doubles

215

created, and some have been strengthened by subsequent resolutions, despite the multiple factors militating against this.

Leveraging Feminist Footholds Together, the eight WPS resolutions tell a salutary story of contestation between the competing logics of masculinist protection (allied with SV GF) and of feminist social justice and peace, between the dominance feminism of SV GF (strongly allied with the United States and United Kingdom) and the many other strands of feminist thinking (allied sporadically with other P5 members—­particularly Russia and China), and between institutional and grassroots feminisms. In simple numerical terms, the count is even, with the protective and empowerment lobbies each able to claim four resolutions. In my reckoning, which follows, the SV GF story of female sexual vulnerability wins out, yet there are also footholds for the pursuit of more liberatory feminist goals that provide leverage for the reclamation and re-­signification of feminism’s institutional doubles. It is not that feminist visions of a peaceful and equitable world order have been stamped out by SV GF or swamped by geopolitical maneuverings. On the contrary, feminist hopes for political, economic, and social justice, for peace in the positive sense of global egalitarianism and solidarity and total disarmament, continue to be discussed and energetically promoted outside international institutions in grassroots, national, regional, and international peace and human rights movements. The recent withdrawal of the WILPF from its long-­standing engagement with the UN Conference on Disarmament, in protest at its institutional practices that “reinforce deadlock” rather than negotiate disarmament treaties, is one example of the hope for substantive justice and positive peace that can flourish outside institutional settings.128 The continuing vibrancy of this feminist logic is also evident in the institutionally commissioned Global Study on the implementation of SCR 1325, which was completed in 2015.129 I will use the Global Study, and the Civil Society Survey mentioned earlier,130 to show how, despite the dominating influence of SV GF and bureaucratic demands, the WPS resolutions have provided opportunities for many NGOs to keep a more transformative feminist logic alive. In conclusion, I highlight how the Global Study also provides a sobering illustration

216

Dianne Otto

of the sometimes devastating compromises involved in translating feminist logics of social justice and peace into institutional form, before making my final assessment of the feminist gains and losses from this fifteen-­year engagement with the Security Council. The tenacity of feminist logics of social justice and peace, and the hope that the Security Council’s WPS agenda provides a means to work toward its realization, is readily apparent in the findings of the Civil Society Survey, which sought the views of 317 NGOs from the global South working on WPS issues. Women’s participation was identified by 76 percent of respondents as a top advocacy priority (adding together those that identified decision-­making at the international, national, and local levels).131 Clearly, as the authors of the survey observe, the WPS agenda has “catalyzed the establishment and increased the capacity of many CSOs [Civil Society Organizations] and networks devoted to promoting women’s participation” spanning a very wide field of social and political life,132 although respondents also frequently cited their efforts to increase women’s participation as their least effective area of activity.133 As mentioned earlier, other priorities included promoting laws that advance gender equality and women’s rights (28 percent) and the prevention and protection of women from sexual and gender-­based violence in conflict (23 percent).134 For respondents, achieving this trilogy of women’s meaningful participation, enjoyment of equality and rights (including economic and social rights), and safety from violence would lay the foundations for realizing a more deeply emancipatory feminist agenda. I will highlight just three distinct components of feminist logics that emerge from the Civil Society Survey. The first is the call “from respondents across the regions . . . to reclaim the original intention of UNSCR 1325, which is not to make the war safe for women but to prevent violent conflicts.”135 Many complained that “prevention” had come to refer only to sexual violence prevention.136 Thus, one of the survey’s key recommendations is to (re)prioritize conflict prevention, disarmament, and demilitarization by placing it at the core of the WPS agenda,137 which would give priority to what have been key demands of women’s peace movements, at least since 1915, but arguably for millennia.138 Second, “localization” was “a consistent theme,”139 with respondents reporting that they are “constantly challenged by the UN’s focus on elite organizations rather than grassroots organizations.”140 Contending



Contesting Feminism’s Institutional Doubles

217

with the slowness and bureaucracy of the UN was also raised as an issue,141 as well as WPS implementation mechanisms being “too centralized” in the underresourced and marginalized UN Women.142 The pervasiveness of these concerns is reflected in the survey’s first key recommendation, which is to “prioritize local women, local initiatives and local implementation of global and national policies on WPS.”143 While the primary motivation for seeking increased localization is to close the gap between international policies and local realities rather than deny the importance of the international, it would also reduce the power of top-­down SV GF and associated geopolitics and create space for bottom-­up feminist perspectives that are less institutionally constrained. Those bottom-­up perspectives clearly include issues of international concern, such as the need for conflict prevention, disarmament, and demilitarization, as just mentioned. The third component of feminist logics of justice and peace, evident in the findings of the Civil Society Survey, is the emphasis on ensuring that local solutions are embedded in a comprehensive approach that addresses the “root causes” of armed conflict by “encompassing gender equality, policy, security, development, human rights and the rule of law.”144 Many respondents focused on women’s economic rights (including land and property rights) and education as critical to sustainable peace, as well as addressing poverty, unemployment, challenges to good governance, and the militarization of society.145 In sum, the findings of the Civil Society Survey cast SV GF in retreat. While respondents from every region reported a “generalised sense of impunity to sexual violence against women in conflict” and many identified women’s access to justice as among the least effective areas of their work,146 the “successful” sexual violence strategies that were identified had all been developed by grassroots organizations as alternatives to ineffective institutional responses. In Pakistan, for example, one NGO used short experiential radio plays to increase empathy for women survivors and make it easier for them to approach male decision makers for support,147 and in Liberia and Côte d’Ivoire, women established “peace huts” where women come together to share their experiences and ensure their voices were heard in the local community, as well as in the justice and security systems.148 Overall, while respondents acknowledged the need to end impunity for sexual violence and provide support to victims, this is discussed in the context of the need

218

Dianne Otto

to improve access to justice for all women who suffer human rights violations, rather than treated as a stand-­a lone issue.149 Further, 14 percent of respondents identified the focus on sexual violence (rather than ending conflict) as presenting an “obstacle” to their WPS work.150 When asked to identify priorities for future action, 42 percent identified women’s full and equal participation in all conflict-­prevention, peace-­ building, and postconflict reconstruction processes, while only 13 percent prioritized ending impunity and seeking reparations for victims of conflict-­related sexual violence.151 It can be surmised that respondents consider women’s full and equal participation to be a more effective counter to sexual violence than ending impunity. Also of note is that almost all participating NGOs addressed both women and men in their WPS work, with only 8 percent addressing women exclusively.152 For me, this suggests more diverse and inclusive feminist practices than those suggested by the dualistic and hierarchical gender assumptions of SV GF. Despite its institutional location,153 the Global Study picks up on the feminist logic that surfaces in the Civil Society Survey. Conflict prevention is urged as the highest priority, “not the use of force.”154 Efforts to implement SCR 1325 are found to have been, at best, incremental and ad hoc and “have yet to transform military structures and mindsets, or reverse the trend towards higher military budgets and excessive reliance on military solutions.”155 A key message conveyed by women from every continent was that the UN “must take the lead in stopping the process of militarization and militarism,”156 that “the normalization of violence at the local, national and international levels must cease,”157 and that strategies for the nonviolent protection of civilians must be developed.158 The Global Study also identifies the localization of inclusive participatory processes in peace efforts as “crucial” to building peaceful societies, rejecting “one-­size-­fits-­a ll” policies.159 This means “shifting the parameters” of what is considered “political” to include not just formal national-­level processes but also informal processes at the subnational and local levels, where many women are already involved in brokering peace.160 As the Global Study explains, women’s participation in “politics” and “peacemaking” needs to be understood not in the narrow sense of bringing female bodies with some technical expertise to the negotiating table but as forging “a collective commitment and a qualitative change in the understanding



Contesting Feminism’s Institutional Doubles

219

of ‘inclusive’ politics in the context of conflict situations.”161 Finally, the Global Study emphasizes the need to address the root causes of conflict, including structural inequality and its economic drivers,162 the proliferation of small arms, violent masculinities, and climate change.163 Strategies proposed include fostering peace education in schools and raising awareness of women’s rights and the relationship of harmful masculinities to violence in a given context.164 These are very powerful messages attesting to the continued and growing vitality of WPS at the local level, encompassing a range of emancipatory feminist practices. Yet, on turning to the Global Study’s detailed recommendations, it is difficult to find any trace of feminist logics of justice and peace. The need to prioritize conflict prevention and stop the processes of militarism and militarization is only dimly visible in recommendations to “consider the use of unarmed military protection” and “scale up support to unarmed civilian protection.”165 There is no mention of any strategies aimed at general disarmament or reducing military expenditures, only a recommendation to produce benchmarks to monitor “responsible” production of arms by corporations166—­whatever that may mean. The transformative idea of shifting the parameters of the political, in order to value local peace processes and community participation, disappears without trace in the recommendations, which are all focused on including more women in formal decision-­making processes, albeit in a robust way by calling for their “equal and meaningful” participation and the utilization of affirmative action strategies.167 And the emphasis on addressing the root causes of conflict is reduced to barely a flicker in the related recommendations, which draw attention to the need to ensure that gender considerations inform macroeconomic policies and postconflict economic recovery programs, without providing any detail.168 It appears that, in the end, the heavy hand of institutional logic makes it impossible to translate transformative feminist goals into the format and language of formal recommendations. The goals are, quite literally, lost in translation. By contrast, SV GF’s concern with ending impunity for sexual violence readily converts into recommendations that propose establishing an “international tribunal with jurisdiction to try UN staff and all categories of peacekeepers that have allegedly committed serious crimes, including sexual abuse” and to better regulate private contractors hired by the UN “with respect to sexual

220

Dianne Otto

exploitation and abuse.”169 Perhaps it should come as no surprise that the protective logic of SV GF is more amenable to institutional translation than the feminist logic that demands a more fundamental rethinking of international peace and security. This situation provides a compelling illustration of the importance of shifting the boundaries of the political, as discussed in the Global Study, if a transformative feminist logic is ever to breathe sustained life into the footholds that have been so painstakingly carved into institutional agendas.

Conclusion So far, the quid pro quo of feminist engagement with the Security Council weighs heavily against feminist aspirations for the recognition of the full humanity of women and all other gender identities and for world peace in the positive sense of building an equitable and participatory international community and achieving complete disarmament. Among the damaging effects of the WPS agenda, as it has unfolded through its eight thematic WPS resolutions, is the dominance of SV GF. The focus on ending impunity for sexual violence as the worst harm that a woman can experience during armed conflict, and in its aftermath, has had a silencing effect on feminist critiques of militarism and opposition to war. The promotion of the logic of masculinist protection by a project that lays claim to feminist credentials has helped expand the top-­down power and strengthen the legitimacy of the unrepresentative and superpower-­dominated Security Council. The selective embrace of feminist ideas has also helped to divert attention from the underlying structural causes of armed conflict, including the inequitable distribution of global power and wealth, which is sustained by the imposition of punishing free market economic systems in poverty-­stricken peacekeeping economies and the criminalization of the resulting sexual economies that many women rely on for survival. Women are, in return, expected to be grateful. Yet, fifteen years after the adoption of SCR 1325, some developments that are more in keeping with feminist logics of social justice and peace are also evident. They are the result of persistent feminist activism and critique from both within and outside the UN’s institutions. There is no doubt that institutional recognition of the importance of women’s participation in decision-­making related to international peace and



Contesting Feminism’s Institutional Doubles

221

security has provided a powerful organizing tool for local, national, regional, and international feminist networks and movements. Perhaps the treatment of sexual violence issues in a separate stream of WPS resolutions gave this productivity an unintended boon. Clearly, many feminist constituencies are operating independently of SV GF and outside other forms of institutional control, as evident from the Global Survey. These groups remain eager to inject feminist logics of justice and peace into their WPS work at the local level and still hope to strengthen the footholds for transformative feminist change by contesting the militarized mind-­set of the Security Council and its supporting UN agencies. These developments run counter to SV GF’s top-­down understanding of power and challenge the grip of dominance feminism, by preserving space for other strands of feminist thinking—­notably, postcolonial, materialist, and queer feminisms—­ and opportunities to work coalitionally toward transforming the Security Council’s lexicon of peace. So, I conclude by adding another question to the list posed by the editors of this volume: What can those feminists who work from the inside of international, academic, legal, economic, and other institutions do to help build and support emancipatory feminist politics and community activism that are critical of those institutions? Even the institutionally located Global Study concludes that the “most effective” strategy for ensuring that women’s voices are heard is to combine efforts to influence formal processes from the “inside” with activist campaigns from the “outside.”170 There are numerous examples of such activism among the many NGOs that contributed to the Civil Society Survey. Without political struggle, which troubles and challenges the traction that certain feminist ideas have gained on the inside of mainstream institutions, SV GF may yet come to occupy and limit the field of feminist resistance and imaginaries of justice and peace. There is danger at every turn—­the danger of local agendas and aspirations being skewed by institutional demands, of the UN’s discursive norms making translation into institutional goals impossible, and of becoming reliant on imperial, militaristic power to achieve feminist goals. Those committed to feminist logics of social justice and peace need to find better ways to re-­signify feminism’s institutional doubles, bound up in global relations of inequitable power, with emancipatory politics, and develop more coalitional strategies to work against militarism

222

Dianne Otto

from within institutions that are invested in its continuation. While feminist activism outside legal and governmental institutions is crucial, feminists must also work from the inside of those institutions to transform them. Footholds for transformative change may yet be found within even the most bureaucratic embrace of feminist goals.

Notes Thanks to Kalia Laycock-­Walsh for her wonderfully helpful research assistance. 1. Carol Cohn, Helen Kinsella, and Sheri Gibbings, “Women, Peace and Security: Resolution 1325,” International Feminist Journal of Politics 6 (2004): 130; Felicity Hill, Mikele Aboitiz, and Sara Poehlman-­Doumbouya, “Nongovernmental Organizations’ Role in the Buildup and Implementation of Security Council Resolution 1325,” Signs: Journal of Women in Culture and Society 28, no. 4 (2003): 1255. 2. United Nations Security Council, Resolution 798, UN Doc. S/RES/798, December 18, 1992, was the first time the Council expressed concern about the treatment of women in armed conflict. In this instance, it condemned the “massive, organized and systematic detention and rape of women” in Bosnia and Herzegovina. 3. NGO Working Group on Women, Peace and Security, http://womenpeacesecu​ rity.org/. Members in 2017 are Amnesty International; CARE International; Consortium on Gender, Security and Human Rights; Femmes Africa Solidarité; Global Justice Center; Human Rights Watch; International Alert; the Institute for Inclusive Security; International Rescue Committee; MADRE; Refugees International; Open Society Foundations; Oxfam International; Women’s Refugee Commission; Women’s Action for New Directions; and Women’s International League for Peace and Freedom. 4. UN Security Council, Resolution 1325, UN Doc. S/RES/1325, October 31, 2000 (SCR 1325). 5. Dianne Otto, “The Security Council’s Alliance of ‘Gender Legitimacy’: The Symbolic Capital of Resolution 1325,” in Fault Lines of International Legitimacy, ed. Hilary Charlesworth and Jean-­Marc Coicaud (Cambridge: Cambridge University Press 2010), 239. 6. UN Security Council, Resolution 1888, UN Doc. S/RES/1888, September 30, 2009 (SCR 1888), para. 4. 7. UN Peacekeeping, Gender and Peacekeeping: Where We Work, http://www .un.org/en/peacekeeping/issues/women/wherewework.shtml. 8. See, e.g., Sharon Bhagwan Rolls, “Thinking Globally and Acting Locally: Linking Women, Peace and Security in the Pacific,” in Rethinking Peacekeeping, Gender Equality and Collective Security, ed. Gina Heathcote and Dianne Otto (London: Palgrave Macmillan, 2014), 118; Margaret Owen, “Widowhood Issues in the Context of United Nations Security Council Resolution 1325,” International Feminist Journal of Politics 13 (2011): 616. 9. WILPF, A Short Introduction, http://wilpf.org/wilpf/. 10. The Post-­2015 Women’s Coalition is a coalition of feminist, women’s rights, women’s development, grassroots, and social justice organizations working to challenge and reframe the global development agenda. See “Feminist Sustainable



Contesting Feminism’s Institutional Doubles

223

Development: A Transformative Alternative for Gender Equality, Development and Peace” (endorsed by 168 organizations in 2015), http://peacewomen.org/sites/de​ fault/files/Post2015WomensCoalitionVisionStatement_FINAL.pdf. 11. This tension is evident in feminist engagement with international law more generally. See Sari Kouvo and Zoe Pearson, eds., Feminist Perspectives on Contemporary International Law: Between Resistance and Compliance? (London: Onati/Hart, 2011). 12. PeaceWomen, WILPF, http://www.peacewomen.org/. 13. NGO Working Group on Women, Peace and Security, “Security Council Monthly Action Points (MAP),” http://www.womenpeacesecurity.org/map/map​ -september-2017/. 14. “Report of the Secretary-­General: Women’s Participation in Peacebuilding,” UN Doc. A/65/354–­S/2010/446, September 7, 2010; “Report of the Secretary-­General on Women, Peace and Security,” UN Doc. S/2013/525, September 4, 2013, paras. 16–­22. See further Christine Bell and Catherine O’Rourke, “Peace Agreements or Pieces of Paper? The Impact of UNSC Resolution 1325 on Peace Processes and Their Agreements,” International and Comparative Law Quarterly 59 (2010): 941; Gina Heathcote, “Participation, Gender and Security,” in Heathcote and Otto, Rethinking Peacekeeping, 48. 15. Christina Binder, Karin Lukas, and Romana Schweiger, “Empty Words or Real Achievement? The Impact of Security Council Resolution 1325 on Women in Armed Conflicts,” Radical History Review 101 (2008): 22. 16. Janet Halley, Prabha Kotiswaran, Hila Shamir, and Chantal Thomas, “From the International to the Local in Feminist Legal Responses to Rape, Prostitution/Sex Work, and Sex Trafficking: Four Studies in Contemporary Governance Feminism,” Harvard Journal of Gender and Law 29 (2006): 342–­47. 17. Ibid., 341–­42. 18. Janet Halley, Split Decisions: How and Why to Take a Break from Feminism (Princeton, N.J.: Princeton University Press, 2006): 29–­32. 19. Ibid., 29. 20. Ibid., 5. 21. Nancy Fraser, “Feminism, Capitalism and the Cunning of History,” New Left Review 56 (2009): 97. 22. Ibid., 114. 23. Judith Butler, “Contingent Foundations: Feminism and the Question of ‘Postmodernism,’” in Feminists Theorize the Political, ed. Judith Butler and Joan W. Scott (New York: Routledge, 1992), 3. 24. Lela B. Costin, “Feminism, Pacificism, Internationalism and the 1915 Congress of Women,” Women’s Studies International Forum 5 (1982): 301, 310; Leila J. Rupp, Worlds of Women: The Making of an International Women’s Movement (Princeton, N.J.: Princeton University Press, 1997), 15–­19. 25. Iris Marion Young, “The Logic of Masculinist Protection: Reflections on the Current Security State,” Signs: Journal of Women in Culture and Society 29, no. 1 (2003): 1. 26. Preventing Conflict, Transforming Justice, Securing the Peace: A Global Study on the Implementation of the United Nations Security Council Resolution 1325 (lead

224

Dianne Otto

author Radhika Coomaraswamy, UN Women 2015), 28 (Global Study), http://peace​ women.org/sites/default/files/UNW-GLOBAL-STUDY-1325–2015%20(1).pdf. 27. Global Report: Civil Society Organization (CSO) Survey for the Global Study on Women, Peace and Security: CSO Perspectives on UNSCR 1325 Implementation 15 Years after Adoption (Global Network of Women Peacebuilders, Cordaid, NGO Working Group on Women, Peace and Security, International Civil Society Action Network, July 2015), 106–­7 (hereafter Civil Society Survey), http://peacewomen.org​ /sites/default/files/CSO%20Survey%20Report%20FINAL.pdf. 28. Carol Cohn, “Mainstreaming Gender in UN Security Policy: A Path to Political Transformation?” (Working Paper No. 204, Boston Consortium on Gender, Security and Human Rights, University of Massachusetts, Boston, 2004); Jacqui True, “Mainstreaming Gender in Global Public Policy,” International Feminist Journal of Politics 5 (2003): 368. 29. Cohn, Kinsella, and Gibbings, “Women, Peace and Security,” 130. 30. Statement by Honourable Dr. Theo-­Ben Gurirab, MP, Minister for Foreign Affairs, Information and Broadcasting, Namibia, during the Open Debate on Women, Peace and Security, UN Security Council, 4208th Meeting, UN Doc. S/PV.4208, October 24, 2000 (Namibia). 31. UN Security Council, Resolution 1820, UN Doc. S/RES/1820, June 18, 2008 (SCR 1820). 32. UN Secretary-­General, Report of the Secretary-­General on Women, Peace and Security, UN Doc S/2009/465 (September 16, 2009), para. 68. 33. Letter dated June 16, 2008, from the Chargé d’affaires a.i. of the Permanent Mission of the United Kingdom of Great Britain and Northern Ireland to the United Nations Addressed to the President of the Security Council, UN Doc S/2008/402, June 18, 2008, “Women Targeted or Affected by Armed Conflict: What Role for Military Peacekeepers?” (containing a summary of the findings of a conference by the same name held in Sussex, May 27–­29, 2008). 34. SCR 1820, para. 1. 35. Ibid., paras. 6–­10. 36. Ibid., paras. 2 and 4. 37. Ibid., para. 4. 38. In SCR 1820’s sixteen operative paragraphs, the language of “protection” is used seven times (paras. 3, 4, 8, 9 [twice], 10, and 15), while there are no references to women’s “rights.” Only in the preamble is there a general reference to international human rights law. By contrast, SCR 1325 refers to the rights of women (and girls) four times in its operative provisions (paras. 6, 8c, 9, and 15). 39. SCR 1820, para. 12. 40. Ibid., paras. 10 and 11. 41. Ibid., para. 3. 42. Ibid., para. 13. 43. Ibid., para. 14. 44. Karen Engle, “The Grip of Sexual Violence: Reading UN Security Council Resolutions on Human Security,” in Heathcote and Otto, Rethinking Peacekeeping, 23, 26. 45. See the Preface to this volume.



Contesting Feminism’s Institutional Doubles

225

46. Young, “Logic,” 2. 47. Sheri Lynn Gibbings, “No Angry Women at the United Nations: Political Dreams and the Cultural Politics of United Nations Security Council Resolution 1325,” International Feminist Journal of Politics 13, no. 4 (2011): 522. 48. Discussion with Marianne Mollman, Human Rights Watch, New York, ­November 19, 2009 (notes on file with author). 49. UN Security Council, Resolution 1888, UN Doc. S/RES/1888, September 30, 2009 (SCR 1888); UN Security Council, Resolution 1960, UN Doc. S/RES/1960, December 16, 2010 (SCR 1960); and UN Security Council, Resolution 2106, UN Doc. S/RES/2106, June 24, 2013 (SCR 2106). 50. SCR 1820, para. 1; SCR 1888, para. 1; SCR 1960, para. 1; SCR 2106, para. 1. 51. SCR 1820, para. 1; SCR 1888, para. 2; SCR 1960, para. 1. 52. The argument for such an extension is made in Catharine MacKinnon, “Women’s September 11: Rethinking the International Law of Conflict,” Harvard International Law Journal 47 (2006): 1. In the Security Council debates on the issue of sexual violence as a “tactic of war,” the United Kingdom is the only permanent member that has clearly stated that “widespread and systematic sexual violence can pose a threat to international peace and security.” UN Security Council, 5916th meeting, UN Doc. S/PV.5916, para. 14 (June 19, 2008). Thanks to Tamsin Paige for drawing this to my attention. 53. Gina Heathcote, “Feminist Politics and the Use of Force: Theorising Feminist Action and Security Council Resolution 1325,” Socio-­Legal Review 7 (2011): 23; Karen Engle, “‘Calling in the Troops’: The Uneasy Relationship among Women’s Rights, Human Rights, and Humanitarian Intervention,” Harvard Human Rights Journal 20 (2007): 189. 54. SCR 1820, para. 3; SCR 1888, para. 3; SCR 2106, paras. 1–­2. 55. Helen Durham and Tracey Gurd, eds., Listening to the Silences: Women and War (Leiden: Brill Nijhoff, 2005). 56. See, e.g., UN Security Council, 5916th meeting, S/PV.5916, June 19, 2008, para. 26; UN Security Council, 6195th meeting, S/PV.6195, September 30, 2009, para. 11; UN Security Council, 6453rd meeting, S/PV.6453, December 16, 2010, para. 21. 57. See, e.g., UN Security Council, 5916th meeting, S/PV.5916, June 19, 2008, para. 19; UN Security Council, 6453rd meeting, S/PV.6453, December 16, 2010, para. 18. 58. SCR 1820, para. 7; SCR 1888, para. 21; SCR 1960, para. 16; SCR 2106, para. 15. 59. Secretary-­General’s Bulletin, Special Measures for Protection from Sexual Exploitation and Abuse, ST/SGB/2003/13, October 9, 2003. 60. See, e.g., UN High Commissioner for Refugees and Save the Children UK, Sexual Violence and Exploitation: The Experience of Refugee Children in Liberia, Guinea and Sierra Leone: Report of Assessment Mission Carried Out from 22 October to 30 November 2001 (2002). 61. Secretary-­General’s Bulletin, Special Measures, paras. 3.1 and 3.2. 62. Dianne Otto, “Making Sense of Zero Tolerance Policies in Peacekeeping Sexual Economies,” in Sexuality and the Law: Feminist Engagements, ed. Vanessa E. Munro and Carl F. Stychin (New York: Routledge-­C avendish 2007), 259; Dianne Otto, “The Sexual Tensions of UN Peace Support Operations: A Plea for ‘Sexual Positivity,’” Finnish Yearbook of International Law 18 (2007): 3.

226

Dianne Otto

63. Catharine A. MacKinnon, Feminism Unmodified: Discourses on Life and Law (Cambridge, Mass.: Harvard University Press, 1987), 29; Catharine A. MacKinnon, Are Women Human? And Other International Dialogues (Cambridge, Mass.: Harvard University Press, 2006), 247–­58. 64. This argument is developed more fully in Otto, “The Security Council’s Alliance.” 65. SCR 1820, para. 8; SCR 1888, para 19; SCR 1960, para. 15; SCR 2106, para. 14. 66. SCR 1888, preambular para. xv; SCR 1960, preambular para. xvi. 67. SCR 2106, para. 11 68. Olivera Simić, “Increasing Women’s Presence in Peacekeeping Operations: The Rationales and Realities of ‘Gender Balance,’” in Heathcote and Otto, Rethinking Peacekeeping, 185. 69. SCR 2106, preamble para. 6. 70. SCR 1888, para. 6. 71. Ibid. 72. Ibid., para. 13 73. Ibid., para. 25, which requests the secretary-­general “to provide information on steps taken to protect civilians, particularly women and girls, from sexual violence.” 74. Letter from a Coalition of 71 Congolese NGOs, Representing the Women of the Democratic Republic of the Congo, to the UN Security Council, “Congolese Women Appeal to the UN Security Council to End Sexual Violence,” June 12, 2008, https://www.hrw.org/legacy/pub/2008/women/sec.coun.women.drc.en.pdf. 75. Resolutions Adopted by the International Congress of Women at The Hague (May 1, 1915), reprinted in Women at The Hague: The International Congress of Women and Its Results, ed. Jane Addams, Emily G. Balch, and Alice Hamilton (1916; repr., Urbana: University of Illinois Press, 2003), appendix III, 123–­30. 76. Civil Society Survey, 106–­7. Multiple answers per participant were possible; therefore, the total exceeds 100 percent. The survey, conducted by several international NGOs, enabled the participation of 317 NGOs from seventy-­one countries. The core requirement for participation was that the NGO work on WPS issues in the global South, whether or not they identified their work as acting on SCR 1325 and related resolutions. 77. Ibid. 78. Global Study, 28. 79. The permanent members of the UN Security Council (P5) are the United States, the United Kingdom, France, the Russian Federation, and China. 80. SCR 1325, preamble para. 5. 81. Ibid., paras. 1–­4. 82. Resolutions Adopted by the International Congress of Women. 83. SCR 1325, para. 15. 84. Ibid., para. 8b. 85. Ibid., paras. 6, 8c, 9, and 15. 86. Dianne Otto, “Lost in Translation: Re-­scripting the Sexed Subject of International Human Rights Law,” in International Law and Its Others, ed. Anne Orford (Cambridge: Cambridge University Press, 2006), 318.



Contesting Feminism’s Institutional Doubles

227

87. SCR 1325, para. 4. 88. Ibid., paras. 6 and 8b. 89. Ibid., para. 12. 90. Ibid., para. 13. 91. Ibid., para. 8a. 92. Ibid., para. 13, makes the only reference to disarmament, in the context of “disarmament, demobilization and reintegration,” which is important but only small-­ scale disarmament. 93. Ibid., para. 1, makes the only reference to conflict “prevention” in the limited context of increasing women’s participation in related decision-­making. 94. Ibid., para. 10. 95. Ibid., para. 11. 96. UN Security Council, Resolution 1889, UN Doc. S/RES/1889, October 5, 2009 (SCR 1889); UN Security Council, Resolution 2122, UN Doc. S/RES/2122, October 18, 2013 (SCR 2122); and UN Security Council, Resolution 2242, UN Doc. S/RES/2242, October 13, 2015 (SCR 2242). 97. SCR 1889, paras. 7, 9, 14; SCR 2122, para. 4; SCR 2242, paras. 3, 13, 16. 98. SCR 1889, paras. 1, 4, 10, 19; SCR 2122, paras. 1, 7, 8, 14; SCR 2242, paras. 1, 7, 8, 13, 14. 99. SCR 2422, paras. 1 and 16. 100. Ibid., para. 13. 101. Ibid., para. 15. 102. Ibid., preamble para. 13. 103. SCR 1889, para. 10; SCR 2122, preamble para. 13, paras. 2c and 6; SCR 2242, paras. 1, 2, 5b, 5c, 13, and 15. 104. SCR 2122, para. 7c. 105. SCR 2422, paras. 5b and 5c. 106. SCR 1889, paras. 10 and 11. 107. SCR 2122, preamble para. 11. 108. SCR 2422, para. 3. 109. Ibid., para. 16. 110. Ibid., preamble para. 5, notes approvingly the Convention on the Elimination of Discrimination against Women General Recommendation 30 on Women and Conflict Prevention and Post-­Conflict Situations. 111. Charter of the United Nations (1945), para. 26. 112. SCR 2422, preamble para. 12. 113. Ibid., preamble para. 7. 114. Ibid., preamble para. 15. 115. UN Security Council, 7533rd meeting, UN Doc S/PV.7533, October 13, 2015, 15 (United States). 116. For an early critique of the Security Council’s post–­Cold War expanding sphere of influence, see Martti Koskenniemi, “The Police in the Temple: Order, Justice and the UN: A Dialectical View,” European Journal of International Law 6 (1995): 325. 117. UN Security Council, 7533rd meeting, para. 21 (China). 118. Ibid.

228

Dianne Otto

119. Ibid., para. 22 (Russian Federation). 120. Ibid. 121. Contra, e.g., Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, part III, “A Gender Perspective on Countering Terrorism,” UN Doc. A/64/211, paras. 18–­53, August 3, 2009. 122. SCR 1889, para. 3; SCR 2422, paras. 9 and 14. 123. SCR 2422, para. 6. 124. Ibid., para. 10. 125. Ibid., preamble para. 10. 126. Ibid., preamble para. 14. 127. UN Security Council, 7533rd Meeting, UN Doc. S/PV.7533, October 13, 2015. 128. WILPF Statement to the Conference on Disarmament on International Women’s Day 2015, http://www.reachingcriticalwill.org/news/latest-news/9559​ -wilpf-statement-to-the-conference-on-disarmament-on-international-women-s -day-2015. 129. The Global Study was undertaken as part of the Security Council’s 2015 high-­level review “to assess progress at the global, regional and national levels in implementing resolution 1325 (2000), renew commitments, and address obstacles and constraints.” SCR 2122, para. 15. 130. Civil Society Survey, 10. 131. Ibid., 106–­7. For 38 percent, the top priority was women’s participation in conflict prevention and peace building, peace negotiations, and conflict recovery; for 25 percent, it was local and community decision-­making; and for 13 percent, it was national decision-­making. 132. Ibid., 41. 133. Ibid., 45. 134. Ibid., 106–­7. 135. Ibid., 13. 136. Ibid., 48–­49. 137. Ibid., Recommendations 3, 13. 138. See, e.g., Aristophanes, “Lysistrata,” in Greek Literature in Translation, ed. Whitney Jennings Oates and Charles Theophiluss Murphy, trans. Charles Theophiluss Murphy (New York: Longmans, Green, 1958), 387. 139. Civil Society Survey, 9. 140. Ibid., 8. 141. Ibid., 88. 142. Ibid., 86–­87. 143. Ibid., Recommendations 1, 11. 144. Ibid., Recommendations 5, 14. 145. Ibid., 50. 146. Ibid., 56. 147. Ibid., 59. 148. Ibid., 60. 149. Ibid., e.g., Recommendation 4: “End impunity for human rights violations targeted at women and hold all perpetrators accountable, including UN peacekeepers.”



Contesting Feminism’s Institutional Doubles

229

150. Ibid., 34–­35. Other obstacles identified included lack of resources (39 percent), lack of trust/cooperation between civil society and government (29 percent), gaps between international policies and local realities (29 percent), misinterpretation of culture/religion related to women’s dignity (27 percent), limited institutional capacities (26 percent), increased militarization and diminished space for civil society (22 percent), and security (21 percent). 151. Ibid., 104–­5. 152. Ibid., 117. 153. The Global Study was requested by the secretary-­general of the United Nations in response to the Security Council invitation in SCR 2122 (2013). 154. Global Study, “Executive Summary,” 15; see further chapter 6, 130–­62, and chapter 8, 190–­219. 155. Ibid., 135. 156. Ibid., 25. 157. Ibid. 158. Ibid., 135. 159. Ibid., “Executive Summary,” 15–­16. 160. Ibid., 54. See generally chapter 3, 36–­63. 161. Ibid., 40. 162. Ibid., 154. 163. Ibid., 15; see generally chapter 7, 164–­89. 164. Ibid., 154. 165. Ibid, 156–­57, Recommendations, “Keeping the Peace in an Increasingly Militarized World.” 166. Ibid., 214–­15, Recommendations, “Preventing Conflict: Peaceful Solutions to Operational and Structural Challenges.” 167. Ibid., 58–­59, Recommendations, “Women’s Participation and a Better Understanding of the Political.” 168. Ibid., 182–­84, Recommendations, “Building Inclusive and Peaceful Societies in the Aftermath of Conflict.” 169. Ibid., 156–­57, Recommendations, “Keeping the Peace in an Increasingly Militarized World.” 170. Ibid., 56, referring specifically to peace talks, but the strategy is much more widely applicable.

C H A P T ER 10

Sex Quotas and Burkini Bans DARREN ROSENBLUM

This chapter recounts how feminist theorists and activists managed to write their ideals into the fabric of French law and culture and how nonfeminists began to appropriate those ideals to advance exclusions of Muslims. The 1789 Déclaration des Droits de l’Homme et du Citoyen defines all citizens as equal under the law. For the bicentennial of the Déclaration des Droits de l’Homme, feminist activists graffitied “et des Femmes” all over celebratory Métro posters.1 Soon after, feminists began a more organized push to improve women’s political representation through a quota. For Parité, the 2000 law that requires half of all candidates for public office to be women, to succeed, had to account for universalisme. These values bar quotas that differentiate among citizens. Feminists argued that since this universel was dual—­male and female—­Parité would justly give women half of the power of the body politic. Parité’s passage transformed feminist interest in sex difference and women’s equality into a core valeur républicaine. Although not wholly successful, Parité advanced women’s political inclusion. Then, like a drop of water in a pond,2 these feminist ideas disappeared in plain sight: they became intrinsic to French state norms and public values. As they became woven into state norms, however, politicians began to use them to promote exclusions: first excluding Muslims from full participation in the Republic with veil and burqa bans; then supporting exclusions of sex and class with a corporate board quota (CBQ); more recently, feminist ideas prompted some to propose 230



Sex Quotas and Burkini Bans

231

banning burkinis. The feminism of Parité flipped from including women to excluding French citizens who were not franco-­français. Protecting women became a goal, justifying the Republic’s chivalrous, even paternalistic, response to Muslim customs. French leaders embraced feminism as a way to defend the country against Islamic fundamentalism with bans on veils (2004) and burqas (2009). Immediately after he engineered the 2009 burqa ban, conservative leader Jean-­François Copé and his colleague Marie-­Jo Zimmermann led the push for a CBQ.3 With passage and implementation of the CBQ, feminism made a complete transformation, from marginal leftist theory to elite conservative discourse—­with Copé spouting feminist justifications for advancing women’s corporate equality while Parité feminists remained uninvolved.4 Most recently, feminist ideas have been called upon to exclude French Muslims with proposed burkini bans. From 2014 to 2016, feminist rhetoric resurfaced again as municipalities across southern France banned the “burkini,” a modest, full-­coverage bathing suit. Particularly, after the 2016 Bastille Day terrorist attack, the French public debate over burkinis blossomed into a broader potential response by France to the threat of terrorism.5 The Conseil d’État struck down burkini bans; nevertheless, feminist arguments that promoted those bans helped further nationalist depictions of the Republic.6 Since Parité’s inception, a distributive divergence arose among women. Elite franco-­français women profited from their justified inclusion in civic and corporate leadership as Muslim women bore the costs of clothing restrictions. Without intentionality or perhaps even causality, some women advanced alongside other(ed) women’s exclusion. In the 2017 presidential election, a very splintered electorate put centrist Emmanuel Macron against Front National leader Marine Le Pen. Macron won overwhelmingly, and his new party, La République en Marche, took a large majority of the Assemblée Nationale with its centrist and inclusive vision of France. Although Macron’s election suggests the push to ban Muslim women’s dress may have begun to ebb, the regulatory urge to control Muslim women’s clothing has become an established framework with the veil and burqa bans. Through discussion respectively on Parité, the veil and burqa bans, the CBQ, and burkini bans, this chapter will show that the feminist

232

Darren Rosenblum

push for women’s inclusion came to play a role in deepening religious exclusions.

Parité: Feminism Enters the State In the late nineteenth century, Hubertine Auclert, a French suffragist, wrote that women should have half the seats in the Assembly.7 Nearly a century later, France experienced a powerful women’s movement in the 1960s, much like the one happening in the concurrent second wave of feminism in the United States. In 1975, the first proposed quota included 20 percent of National Assembly seats.8 A subsequent 25 percent version passed, but the Constitutional Council rejected it in 1982 as violating the indivisibility of the sovereign nation, an idea linked to universalism. Universalism had blocked the first effort.9 Enshrined in the 1789 Déclaration des Droits de l’Homme et du Citoyen, universalism—­a radical eighteenth-­century Enlightenment response to monarchy—­meant that the state would consider each citizen as completely equal.10 One Parité advocate described universalism this way: “Democracy knows neither black, nor white, neither big, nor small, neither intelligent, nor stupid, neither rich, nor poor, neither men, nor women.”11 In the 1990s, feminists reimagined the quota as Parité to survive consideration by the Constitutional Council.12 This new approach required that half of all political candidates be women, although the legislature reserved no seats for women.13 Women were half of humanity (l’homme in the sense of humankind) and so needed to be particularly included in the universal. The universal remained unchanged: it was still the ideal, including rather than excluding women. Parité, in this sense did not constitute minority representation, which would be impermissible under universalism. This dual universal became a public norm that even opponents had to embrace, in word, if not by deed.14 Feminists made a concerted political effort to enact Parité as law.15 Their deft strategizing targeted both the French intelligentsia and popular opinion. To skirt the anti-­quota taboo in France, Françoise Gaspard—­a former Socialist member of the National Assembly, its first openly lesbian member, and an intellectual and political leader of the Parité movement—­argued that since women were not a minority, Parité was not a quota—­“contraire au quota dans sa philosophie



Sex Quotas and Burkini Bans

233

même.”16 The 85 percent male legislature agreed. Across party lines, it revised the Constitution and passed the law titled “Equal Access of Women and Men to Electoral Office and Elected Functions” in 2000.17 Parité did not realize advocates’ dreams of a rapid increase in women’s representation—­women currently constitute only 30 percent of the National Assembly—­but it did institutionalize the feminist goal of women’s equality elsewhere in the state and guarantee their place at the table.18 Through Parité, feminism became a central yet adaptable norm of the French state,19 a norm open to racialized utilization.20 Across party lines, leaders would soon find other uses for feminism’s moral and political legitimacy.

How Feminism Excludes: The Veil and Burqa Bans Feminism, now an integral part of the state, came to play an exclusionary role with regard to Muslims, specifically Muslim women’s bodies, first by restricting the veil in public schools, then by banning burqas in public places.21 In 1989—­that same bicentennial year that proved important for feminists—­a public school in Creil expelled three girls for refusing to take off their headscarves. SOS Racisme, France’s most prominent anti-­racism group, responded by arguing that veils should be allowed in public schools. Gisèle Halimi, soon to be a vocal Parité advocate, responded by quitting the group on television.22 Efforts to ban Islamic veils in public schools gathered steam after the U.S. terrorist attacks in 2001. Parité’s passage made women visible, including the female part of the Muslim population. This visibility brought wider attention to their attire, the modesty of which was not culturally French (franco-­français).23 Public schools provided the perfect site for regulation. There, “the students are not users like others, but minors in full learning of citizenship who attend a privileged site of the acquisition and learning of our common values, and an excellent instrument to ground the republican idea.”24 Muslim women aroused a paternalist instinct in the still largely male political leadership: to protect women and girls from their men, their religion, and its “archaic practices,” leaders interpreted France’s republican values, its valeurs républicaines, to exclude Muslim women’s dress. Secularism has held powerful sway in the French Republic since the anti-­clerical fervor of the French Revolution stripped the French state

234

Darren Rosenblum

of Catholicism and even denuded many cathedrals of their religious statuary.25 Enacted in the early twentieth century, the laïcité statute established France as a strictly nonreligious republic and reflected the norms of gender exclusion.26 France actually bars any official record keeping of racial and ethnic data and generally resists any “positive” or affirmative action to integrate Muslim immigrants. Even so, France’s diversity is not new; prior to the twentieth century, many Protestants and Jews considered themselves French citizens. After the Vichy collaboration of World War II and the various colonies’ independence movements, France became a de facto multicultural society due to mass labor immigration from its colonies, especially those of North Africa.27 Unlike nominally Catholic but often-­atheist franco-­f rançais people, Muslims tend to be more devout. They constitute France’s second largest religious and primary ethnic minority. This minority faces exclusion: “Narrowly linked to the exclusionary and racial conception of citizenship, laïcité did not respect its claimed trait of universalism.”28 Feminists who fought for Parité in the 1990s surely could not have anticipated France’s increasing Islamophobia in the post–­September 11 context. Several prominent feminists such as Élisabeth Badinter and Gisèle Halimi, along with groups such as Ni Putes Ni Soumises (“Neither Whores nor Submissives”), acted to promote the headscarf law’s exclusions as an advance in women’s emancipation.29 That group in particular worked against Muslim men treating women as whores for rape or as submissives for control through domestic violence and veils. Veil-­ban supporters used feminist arguments to assert that the state should protect Muslim women and girls from their religion and the control of Muslim men, arguments that often presumed women’s heterosexuality. The same universalism that Parité had adapted to include women functioned here to exclude others, notably those with ethnic and religious differences.30 One veil-­ban advocate went so far as to warn that veil wearing would invite the installation of an Islamic state in France.31 Notably, Françoise Gaspard, who had crafted and executed the Parité idea, opposed the veil ban, stating that the ban would only encourage its use.32 For her, the duality of the French republic with regard to sex still invited a pluralist recognition of other difference, rather than exclusion of minorities.33 Indeed, she referred to the pro-­ban feminism as having a “caractère liberticide” (liberty-­k illing character).34



Sex Quotas and Burkini Bans

235

Advocates were mindful of the need to present the ban as neutral lest it be considered a relic of France’s colonialism. The law encompassed more religious symbols—­large crosses and yarmulkes—­a lthough none were as prevalent as the veil.35 Such denials of “exception” only proved the contrary—­everyone knew that the law’s intent was to control the wearing of the veil. In 2004, the National Assembly passed the ban, with an exception for small symbols.36 The Conseil d’État ratified the law. Although the wearing of large religious items did not necessarily violate laïcité, the items might “constitute an act of pressure provocation, proselytism, or propaganda” toward other students or the school.37 The veil ban transformed laïcité from established neutrality toward an aggressive exclusion of overt religious expression.38 This nouvelle laïcité, as Stéphanie Hennette Vauchez calls it, “limits not only the action of the state but also the liberty of individuals.”39 With this change, laïcité went from a right to freedom from religious inequality to a duty to restrict. In feminist terms, Gaspard’s pluralist feminism lost while Halimi’s liberticide feminism won. Nonfeminist leaders took notice. As Gaspard had predicted, legislating a ban invited a reactive embrace of headscarves. In 2009, National Assembly member Jean-­ François Copé began an effort to ban burqas. Burqas were “une blessure à la dignité de la femme,” an injury to the dignity of woman as an ideal, not “des femmes”—­of women as a group.40 France needed protection, Copé argued, from people who were “instrumentalizing religion” to disregard French fraternité, in which one’s face forms a civic presence.41 Feminist framings of the burka debate proved useful for nonfeminists. Then-­president Nicolas Sarkozy’s support persuaded some. He stated that The issue with the burqa is not a religious one. It is an issue of the liberty and dignity of woman. The burqa is a sign of enslavement; it is a sign of abasement. . . . We cannot accept in our country that women would be prisoners behind a gate, cut from all social life, deprived of all identity. It is not the idea that we have of the dignity of woman.42

While Sarkozy focused on the dignity of women, Copé situated women as part of an idealized heteronormative life: “A trait of our civilization,

236

Darren Rosenblum

one of the French singularities, is the exaltation of the art of living together, men and women.” 43 This version of vivre ensemble for men and women constituted “an inheritance of history, a trait of our identity.” 44 Copé, therefore, framed burqas as “walls of fabric” that upend the vivre ensemble of men and women. Copé insisted that women’s faces must be exposed as part of their role in the vivre ensemble with men. The heteronormativity of the vivre ensemble, if unintended by Copé, remains evident—­it points to people relating across sexes, in what some might describe as a sexual market. The strong modesty of burqas violates this French ideal of the sexual nature of women’s (as well as men’s) visible faces and bodies. Self-­identified feminists—­like Halimi and many others—­proved secondary in the law’s realization, even as they legitimized the opportunistic feminism of these prominent hommes politiques.45 Even so, the implicit heteronormativity of Copé’s vivre ensemble argument did not spring fully formed from his imagination. It recalls an entire strain of French feminism that emphasized heterosexuality, femininity, and how the erotics of sexual difference gave women power in society.46 Other feminists, such as historian Mona Ouzouf and philosopher Élisabeth Badinter, focused on the doux commerce (“passionate economy”) between the sexes as a basis for feminism, a basis for opposing Parité as overly driven by equality in a way that submerged difference between men and women. “Muslims did not understand that open erotic play was integral to Frenchness”; therefore, these feminists questioned the inclusion of Muslim culture within the Republic.47 For example, in an essay on chivalry, feminist Claude Habib insisted on French seduction as a bulwark against Islamism.48 Copé did not just allude to feminist theory—­he explicitly included a nonbinding resolution in favor of respect for women’s rights. His support for this provision, the burqa ban in general, and the soon-­to-­ come CBQ would garner support from some feminists as proof of his sincere commitment to women.49 His burqa ban, derided at first as “inelegant,” passed in 2010.50 The marriage of the fight against Islamic fundamentalism and the fight for women’s rights was consummated. Designer Hussein Chalayan exposed a logical fallacy in Copé’s argument that burkas remove sexual agency. Chalayan’s 1998 spring collection, which became a highlight of his 2011 solo exposition at the



Sex Quotas and Burkini Bans

237

Musée des Arts Décoratifs, illustrated the complex meaning of veiling and voyeurism, and the power and vulnerability in both nudity and being entirely covered. The show featured “six models in black chadors of ever-­decreasing length—­the shock being that some girls were naked from the waist down, the last completely nude save for a face covering.”51 The collection continues to challenge both traditional Muslim mores against exposure and twenty-­first-­century French tendencies toward it.52 Chalayan’s work foreshadowed how subsequent anti-­burqa activists would use the language of feminism without actually engaging its ideals. When opponents appealed the burka ban to the European Court of Human Rights (ECHR), the Court rejected France’s gender argument for the ban.53 The ECHR responded skeptically, in part because some women embraced the practice, and a ban would hinder their personal freedom;54 nonetheless, the Court upheld the ban, declaring that it was “not expressly based on the religious connotation of the clothing in question but solely on the fact that it conceals the face.”55 The focus of the ECHR was the effect on participating in or hiding from civic life.56 It warned any state party to the European Convention on Human Rights to avoid stereotypes that foster intolerance.57 French society’s general anti-­clericalism and its Islamophobia had already led private actors to informally discriminate against women with Muslim clothing. The veil and burqa bans codified and legitimized this already existing private discrimination. While these private actions had and continue to have substantial distributive consequences for Muslim women, the legitimation of discrimination by the veil and burqa bans only deepens the divide between franco-­français women and Muslim women. Muslim women, to succeed in society, must simply shed public markers of their Muslim religious or cultural affiliation. The veil and burqa bans exposed a previously unnoted paternalism beneath the universalist, republican mantle of the law: women needed inclusion as women in the polity. Copé redeployed Parité’s logic with the new idea that women who—­for ethnic or religious reason—­did not disappear into French fraternité, were being degraded and needed rescue by the Republic. Unenumerated Muslim minorities remained subject to both socioeconomic exclusion and restrictions on their

238

Darren Rosenblum

self-­expression. These successful appropriations of originally progressive feminist arguments made those arguments available for later use by other French national and nationalist projects.

The Corporate Board Quota In 2003, as France implemented Parité, Norway enacted the world’s first corporate board quota to remedy women’s continued exclusion from corporate sector leadership. Immediately after the 2010 ban on burqas, Marie-­Jo Zimmermann, of the right-­leaning Union pour un Mouvement Populaire (UMP), along with Copé proposed the CBQ to copy the Norwegian statute’s 40 percent floor for either sex. The National Assembly passed the law early the following year.58 Although feminist arguments played a central role, they originated not from the feminist movement but from the conservative party to force mixité (sex diversity) into the corporate elite.59 Unlike the left-­driven campaign of Parité, conservatives drove the CBQ. As the veil and burqa bans demonstrated, these feminist arguments took on their own momentum without need for any self-­identified feminist actor. Below I discuss how France adopted the corporate quota and how its adoption further entrenched feminist inclusion through co-­optation.

State Feminism: The Adoption of the Corporate Board Quota Following the success of Norway’s quota, which saw near-­absolute compliance by 2008, Zimmermann became interested in legislating corporate inclusion.60 With women representing only 10 percent of French corporate leadership, Zimmermann agreed with the Norwegian business argument that including women would add talent and improve management. She expressed pride in how much the CBQ would enrich business, saying that it would “ameliorate a system that was a little too easy going.” 61 The leaders of the CBQ effort, Zimmermann and Copé, stand in marked contrast to the feminists who advanced Parité. Both are conservative politicians, and neither will admit wholeheartedly to a feminist orientation. In 2014, Zimmermann conveyed her hesitant feminism: “Today, my views on women’s issues have evolved. I look differently at the society, insofar as it does not leave a prominent place



Sex Quotas and Burkini Bans

239

to women. I also appear to systematically claim a better recognition of women. If this is being a feminist, then yes, I am one of them.”6  2 Zimmermann’s reluctant feminism matches Copé’s awkward mélange of paternalism and chivalry packaged as women’s rights. A conversation with a Norwegian minister who warned “the Germans might legislate first” led Zimmermann to fast-­track the CBQ to preserve France’s reputation as a European leader. Zimmermann secured the support of Copé, around whom conservatives had rallied after his successful use of feminism in the burqa debate. Copé saw protecting and advancing women as an opportunity for his then-­rising political career. He agreed to support the CBQ to burnish his nascent chivalrous credentials, or possibly as a riposte to feminists and those on the left who opposed the burqa ban. To justify the use of an actual quota that overrode French business leaders required Zimmermann and Copé to argue that the CBQ would prove profitable. Beyond the goal of advancing women, Zimmermann and Copé repeated the Norwegian business case argument—­that a critical mass of women would deepen the talent pool with “women’s traits,” such as risk aversion and methodical analysis, that would improve profitability.63 Without a critical mass, minority members become token. These paternalist tendencies toward the private sector echoed Copé’s regulating the “private” choice of wearing a burqa. Businesses resisted quotas and hoped voluntary measures would forestall legislation, but Zimmerman rejected this effort, insisting that a quota would “get things to move”;64 the legislature soon passed the law. Law 2011-­103, entitled “On the Equal Representation of Men and Women on Boards of Directors and Supervisory Boards and Professional Equality,” 65 required mixité for over two thousand publicly traded companies in France.66 Inspired by Norway’s law, the National Assembly framed the quota as a floor for both sexes,67 not as a sex-­ specific quota.68 The legislation imposed a six-­year schedule for attaining these objectives: a 20 percent minimum for both sexes by 2014 and 40 percent by 2017.69 Two contrasts with Parité merit our attention: first, Parité’s failures might have laid the groundwork for the CBQ’s harder remedies, such as the revocation of noncompliant nominations to the board and the potential freeze of board members’ remunerations.70 A second distinction was that the law veered from the Parité theory of 50 percent of

240

Darren Rosenblum

candidacies and instead mandated a 40 percent floor to balance either sex for board seats. The CBQ’s passage immediately effected change.71 Firms of all sizes sharply increased their levels of women’s representation.72 As a matter of general governance, French law limits individuals to four board memberships.73 This rule, combined with the scale of France’s economy—­the fifth largest in the world—­meant that the CBQ created an enormous demand for women board members; firms wanted to secure the most “competent” women for their boards. As a result, French firms figure as seven of the top ten global firms with high levels of women’s representation.74 The efficacy of the CBQ may derive from conservatives’ incorporation of business goals and the widely held goal of profit rather than from a normative argument of equality. Thanks to Parité, feminism reached through the state into corporate regulation to grasp a piece of the boardroom. The CBQ’s passage marks a historical moment when feminist ideas of women’s inclusion became such a fundamental part of public norms that feminists were not needed to make the argument: it was feminist influence rather than feminist activism. As feminist ideas became mainstream political rhetoric with the veil and burqa debates, here they became intrinsic to the very definition of French democracy. After the CBQ, related regulations advanced sex equality throughout French elites in government, education, and other areas of society. Even if Parité and the CBQ served conservative or other interests, it also served the liberal feminist goal of equality—­but not for all women. Opportunities that now greeted franco-­français women continued to evade Muslim women, who saw fewer chances due to clothing restrictions. This chapter suggests that the CBQ was not just about the relationship between feminism and capital but also about how the new law advanced the norms of the veil and burqa bans. Indeed, reflecting on the CBQ, Copé and Zimmermann each linked the CBQ with France’s colonial past. In a 2011 colloquium in a jewel-­like palace on the Champs-­Elysées, Copé remarked that “the test of a society’s civilization is in how it treats its women.”75 France was highly civilized, Copé seemed to insist—­it promotes women to corporate elites, saves them from “an injury to the dignity of woman,” and ensures their inclusion in the heteronormative vivre ensemble. Rhetoric praising the CBQ’s civilizing effects resurfaced four years later, at a 2015 colloquium at the



Sex Quotas and Burkini Bans

241

National Assembly in which Zimmermann praised Moroccan interest in a corporate board quota, noting that it reflected a desire to resist integrisme or religious fundamentalism.76 For her, Moroccan interest in a CBQ confirmed that women’s equality could civilize people, in France or in its former colony.

The Corporate Board Quota’s Distributive Effects: Who Profits and Who Pays? Espousing valeurs républicaines, politicians used feminist arguments to advance exclusions with the veil and burqa bans. In all three debates, nonfeminist actors deployed the feminist arguments pioneered in the Parité effort. Then with the CBQ, feminism again appears inclusive—­to force mixité into the corporate hierarchy. But let us pause to assess what feminism wrought once it entered the corporate sector. If Parité’s inclusion meant governance including women, the CBQ reflected a different kind of feminism: one that advanced some at the expense of others, which fortified exclusions. Here I describe those who profited and those who paid. One goal of Norway’s CBQ was to balance opportunities for people without regard to sex by improving women’s opportunities. CBQs reflect the way in which the private depends on the public—­extending public norms into the private sphere fosters sex equality.77 The sheer number of firms with board positions reserved for women will elevate thousands of women to corporate boards. This expansion created a rapid and immense distributive shift, a gold rush for women with a stream of new organizations.78 Although this was a far broader network than the tight group that previously held board positions, it remained one that benefited people of relative privilege. An “old girls network” grew, as did alumnae networks, social groups, educational programs, and coaching and executive search firms, all in the effort to identify, train, and place women on boards.79 The annual Women’s Forum—­a conference devoted to promoting women’s business leadership—­draws thousands of women.80 To retain their class power, business elites choose these women, who reflect their own existing elite-­driven norms.81 In addition, to get these positions, women may “man up”: engage in professional performances that demonstrate their masculinized skill sets to a male-­driven marketplace.82 Women in the workplace face a double bind as they need to

242

Darren Rosenblum

perform masculinity to appear skilled but must also perform femininity to appeal to (most of) the men who may hire them. Ultimately, thanks to their gender-­performance balancing act, these women may “feminize” the firm somewhat less than feminists hope. Quotas designed to foster equality result in real costs to men.83 Absent state intervention, men form an elite that, in a monopolistic way, would cyclically replace itself with like-­minded men. With quotas, men lose the near exclusivity of their economic and social power and their attendant network dominance. The CBQ institutes a temporary glass ceiling for men, in place until the boards actually have a composition comprising 40 percent women. The ceiling means that most, if not all, new members until full implementation by 2017 will be women, thereby ensuring that the few remaining male slots become more competitive. Many qualified men suffer real loss, especially those whose advanced career status renders their experience less transferrable.84 But there is little space for gender nonconforming or nonelite because the CBQ and Parité do not challenge the gender binary—­t hey reinscribe it. By definition, quotas essentialize sex. That sex difference, the essentialist binary, will determine who gets board positions. Gender equality remedies require that individuals—­board members, political candidates, or students—­fit into the male/female binary. The binary excludes persons of other sexes and genders, who then fall into a precarious uncertainty.85 Given the performativity demands of elite positions, the hurdles for gender-­nonconforming individuals to rise to the top seem largely insurmountable. Such costs may, however, hold benefits for individuals and society. Two benefits surface with regard to the loss of this monopoly on power. First, men may improve their skills to match demand, as do firms that compete harder after they lose monopoly power. Given what we know about diversity, firms may benefit even if men privately view this change as a personal cost. Second, sex equality in elite work may facilitate gender balance in family contexts.86 For heterosexual couples, women’s success may facilitate men’s engaging in family work.87 Quotas may also undermine the sex binary by rebalancing the profile of typical corporate leaders to include women and reducing opportunity differentials based on sex. Including women in corporate leadership will reduce income and eventually care work disparities. Forty



Sex Quotas and Burkini Bans

243

percent acts as a floor that might ultimately impose a minimum number of men to serve on the board.88 The CBQ’s 40 percent floor instead of Parité’s 50 percent requirement may shift this binarist emphasis. Because of this possibility, the CBQ may carry slightly fewer essentialist effects than Parité. After the success of Parité and the CBQ, conservatives managed to reimagine the status of women as a national priority that—­contrary to feminists’ original goals—­provided cover to institute paternalist protections against so-­called backward practices such as traditional Muslim dress.89 The CBQ necessarily legislated inclusion of elite, largely franco-­français women, not broader groups of women.90 As the state increased leadership for “all” women, it simultaneously stripped other (Muslim) women of their potential inclusion, at least to the extent they insisted on wearing now banned clothing.

Feminism, Burkinis, and an Ebb to Restrictions? Parité and the CBQ promise equality for all women, but only certain women have profited from these initiatives. As the state used quotas to ensure women’s improved political and corporate leadership status, Muslim women lost personal and religious liberty. With Parité and the CBQ, France’s now-­feminist valeurs républicaines mandated inclusion; however, the veil and burqa bans, and later attempts to ban burkinis, legislated exclusion by arguing that burkinis enslaved women.91 Local bans ensued, but ultimately the Conseil d’État overturned them. The sweeping election in 2017 of Emmanuel Macron and his République en Marche party, with its inclusive message, also signaled an ebb to restrictions.

The Wave of Burkini Bans and Their Demise In the years since the burqa ban and the CBQ, 2011–­16, France suffered several terrorist attacks, increasing franco-­français citizens’ collective fear of Muslims. This fear echoed the veil debate of the 1990s that a permissive attitude might lead to an Islamic state. Burkini bans began in 2013, spreading slowly. In 2015–­16, the wildly popular novel La Soumission by Michel Houllebecq gripped France with its dystopic fantasy. The novel imagines that a moderate Islamist party would take over

244

Darren Rosenblum

France with the support of the left and would then Islamize France.92 The 2016 Bastille Day attack confirmed and intensified this fear. Reaction to the attack included panicked arguments that burkinis threatened public order. The 2016 ban in Wissous, a city near Paris, provides an example: for their seasonal outdoor swimming pool and beach, the rules forbade “ostentatiously displaying religious signs susceptible to create public order disruption.”93 The penalties for ignoring the ban were relatively minor.94 Despite the reversion to the veil ban’s use of non-­Muslim-­ specific language, a court struck down the rule.95 Nevertheless, approximately fifteen towns banned burkinis on their beaches, even though several mayors had never seen one.96 Politicians repurposed the successful feminist arguments from the burqa debate for the burkini—­focusing on ensuring women’s freedom from religiously forced modesty. As with CBQs and Parité, politicians of both left and right supported bans on Muslim women’s clothes. Leaders of various political persuasions appropriated feminist language to advance exclusions for Muslims in the name of protecting women’s ability to participate in French society. In the burkini debate, feminist arguments bolstered restrictions on those issus de l’immigration, just as the burqa ban vivre ensemble f rançais gender performance. arguments had favored franco-­ Women who found agency in public life and embraced their female allure fit the franco-­français model, while Muslim women who might prefer modesty would not.97 One sociologist argued that wearing a burkini was “a visible sign of identitarian aggressivity.”98 Then–­prime minister Manuel Valls, a Socialist and regular supporter of feminist causes, vocally supported the ban, stating that burkinis were akin to slavery and violated what he viewed as French values—­ against this “provocation, the nation must defend itself.”99 While Valls himself opposed strict enforcement, his feminist support for the ban draws on an exclusionary concept of women: “The burkini is not a new type of bathing attire, a trend. It is the translation of a political project, a counter-­society, based on the enslavement of women.”100 Laurence Rossignol, the socialist feminist minister for families, children, and women’s rights, echoed Copé’s civilization language. She



Sex Quotas and Burkini Bans

245

described the burkini as being “profoundly archaic. . . . The burkini is . . . a particular vision of the place of the woman. It cannot be considered only as a question of fashion or individual liberty.”101 Amusingly, Rossignol extended her fashion commentary to criticize H&M and Dolce & Gabbana for their “chaste clothes.”102 Noted feminist Élisabeth Badinter—­reprising her role in the veil debate—­joined in with her own criticism of these clothes; both she and Rossignol view excessive modesty as anti-­feminist.103 Ostensible bases for such bans included good moral standards (bonnes mœurs), laïcité, hygiene, and even safety, under the contrived theory that burkini-­clad women would be harder to rescue.104 Political discourse about burkinis seems to center on the belief that the wearing of more revealing bathing suits is a woman’s civic duty in order to engage in the vivre ensemble. Additionally, as the ECHR had foreseen in the burqa case, fear of terrorism played an explicit role in burkini legislation. A Cannes ordinance says: “Beach attire that ostentatiously displays a religious affiliation, when France and places of worship are currently the target of terrorist attacks, is likely to create risks of public order disruption.”105 A local judge concurred that burkinis “would exacerbate tensions between beachgoers of all faiths . . . and present a risk to the public order.”106 Despite, or perhaps because of, their political and practical bases, local burkini bans did not survive national judicial review.107 The Conseil d’État overturned the bans after the controversy reached a head over the course of the summer of 2016.108 In late August, the Conseil stated that the localities should first maintain order, then balance any bans with the value of access to the beach.109 Focusing on the Villeneuve-­Loubet rule, from a town near Nice where the Bastille Day terror attack occurred, the judge found no basis for a threat to public order.110 The heightened emotion and anxiety resulting from the Nice terrorist attack did not justify the ban. The judge’s decision focused on the personal liberty involved in one’s own choice of clothing. As Stephanie Hennette Vauchez argued prior to the decision of the Conseil d’État, burkini laws restricted liberty and constituted discrimination against Muslims.111 The decision now stands as a mandatory precedent and can be overturned only by national legislative action or constitutional reform.

246

Darren Rosenblum

Immediately after the decision, Gaspard reiterated her pluralist feminism—­one that includes women who wear veils and other religious garments—­to agree with the Conseil d’État’s decision. Had ban supporters reacted negatively to the decision, they may have sought national legislation to override it.112 Banning the burkini would lead to its proliferation, Gaspard argued, and the ban would be liberticide. Although surely unintended, positive feminist-­backed initiatives yielded distributively unequal benefits. Although the Conseil d’État’s reason prevailed over 2016’s fearmongering, the debate exposed the other side of the CBQ’s inclusion: here, predominant feminist arguments again advanced exclusion.

The 2017 Elections: A Turn to Liberal Inclusivity? Although popular, the reversal of burkini bans presaged another centrist shift—­t he presidential and legislative elections of 2017. Emmanuel Macron swept both elections with his new party, La République en Marche. Their forward-­looking image of France was more inclusive than traditional parties. As a result, of the 577 members of the National Assembly, approximately twenty legislators come from a background issu de l’immigration (of an immigrant background), although the press did not ascribe any religious affiliation to these leaders, following the state’s prohibition of reporting religious identity.113 One news source proclaimed, “The National Assembly is finally in the image of the country”; of these representatives, four women are of North African heritage—­Sarah El Haïry, Fadila Khattabi, Anissa Khedher, and Sonia Kirimi—­and none wear a headscarf.114 One woman deputy, Ramlati Ali, represents Mayotte, a small island off Madagascar, which voted to become a département of France in 2011. She wears a headscarf but insists it is not a Muslim veil but a châle Mahorais instead.115 Macron’s views of the relationship between the state and religion are more liberal than those of Walls and Sarkozy. Macron, in separate statements, agreed with the veil ban for impressionable school-­age girls but disagreed with bans for adult women—­in the workplace or the university—­as restricting the liberty of such women.116 Bans would relegate women to life within their communities when laïcité stands against communitarisme. Macron argued that the French rule is laïcité, not laïcisme—­a belief in a civic religion.



Sex Quotas and Burkini Bans

247

Macron’s victory and that of his party repudiated the existing political order. But we cannot presume that he will reverse the paternalist tide carried so far in part by feminist rhetoric. The bans’ continued success poses questions for feminisms that take hold, even tenuously, of the state’s reins.

Conclusion Feminists pursued inclusion in the Republic with Parité, and they succeeded in convincing France to enshrine their essentialist norms. Once it became a valeur républicaine, feminism changed. It went from a 1990s outsider perspective to a central tenet of twenty-­first century France, demonstrated by fluid feminist arguments by male leaders of both left (Socialist) and right (UMP) parties. Despite Parité’s limited success in actually fixing sex ratios in elected officialdom, the perseverance of male dominance in politics—­combined with widespread use of feminist language—­makes some of this feminism look more like old-­school chivalry. France included women in economic leadership with the CBQ and reduced “enslavement” by restricting Muslim women’s clothing, including veils, burqas, and, briefly, burkinis. Quotas legitimize certain identity differences to the exclusion of others. The linkage of feminism and the valeurs républicaines within universalism transformed French law, as it juxtaposed inclusive remedies (Parité and the CBQ) for sex difference against exclusionary ones (veil, burqa, and burkini bans) related to religion and ethnicity.117 Law reforms produce distributive effects—­here, they favored elite franco-­f rançais women while furthering the exclusion of Muslim women. This transformation of feminism within the French state poses genuine conflicts for feminist advocacy.

Notes The author wishes to thank Janet Halley and Rachel Rebouché, as well as Laure Bereni, Stephanie Hennette Vauchez, and Julie Saada. Crucial research support was provided by Briana Costa, Kristyn Francese, and Jérôme Orlhac. 1. G. de St. F. Essai Sur La Déclaration Des Droits, De l’Homme Et Du Citoyen, art. VI [France], 1789. Under the universalist doctrine, all should be treated equally, without regard to membership in a particular group. All citizens universally benefit from this equal level of treatment. Francoise Gaspard, Claude Sevran-­Schreiber, and

248

Darren Rosenblum

Anne Le Gall, Au pouvoir, citoyennes! Liberté, Egalité, Parité (Paris: Editions du Seuil, 1992), 20–­40. (The graffiti read “and of women.”) 2. Janet Halley, “Where in the Legal Order Have Feminists Gained Inclusion?,” in Governance Feminism: An Introduction (Minneapolis: University of Minnesota Press, 2018), 6. 3. Quotas for women epitomize how feminism has come to exercise influence over states, and nowhere is this truer than in France. After Parité mandated equal numbers of female and male political candidates, the CBQ required sex diversity in boardrooms. Here, conservatives became content to deploy feminist arguments to force women’s inclusion into the corporate board context. 4. Copé was also depicted as an opportunist by a political opponent during the debates on the CBQ. Margaux Collet, “Danielle Bousquet: ‘Des Forces Conservatrices Bloquent les Avancées des Droits des Femmes,’” Libération, March 8, 2010, http:// www.liberation.fr/societe/2010/03/08/danielle-bousquet-des-forces​-conservatrices​ -bloquent-les-avancees-des-droits-des-femmes_613990. 5. Alissa J. Rubin, Adam Nossiter, and Christopher Mele, “Scores Die in Nice, France, as Truck Plows into Bastille Day Crowd,” New York Times, July 14, 2016, https://www.nytimes.com/2016/07/15/world/europe/nice-france-truck-bastille​ -day.html. 6. The Council of State acts as a supreme court of administrative justice, which reviews laws. Conseil D’Etat, http://english.conseil-etat.fr/ (accessed September 13, 2017). 7. Hubertine Auclert, La Citoyenne, Articles de 1881–­1891 (Paris: Syros, 1982), 52. 8. Gill Allwood and Khursheed Wadia, Women and Politics in France, 1958–­2000 (London: Routledge, 2000). For an in-­depth exploration of Parité, see generally Éléonore Lépinard, L’égalité introuvable, la parité, les féministes et la République (London: Routledge, 2007). 9. A. F. Thompson, “From Restoration to Republic,” in France: Government and Society, ed. J. M. Wallace Hadrill and J. McManners (London: Methuen Young Books, 1970), 211. 10. William Bristow, “Enlightenment,” in Stanford Encyclopedia of Philosophy, ed. Edward N. Zalta (Stanford, Calif.: Metaphysics Research Lab, 2011), https://plato​ .stanford.edu/entries/enlightenment/. 11. Claude de Granrut, Allez Les Femmes! La Parité en Politique (Paris: Descartes & Cie, 2002), 34. See also Gaspard, Sevran-­S chreiber, and Le Gall, Au pouvoir, citoyennes!, 51. 12. Gaspard, Sevran-­Schreiber, and Le Gall, Au pouvoir, citoyennes!, 51. The Conseil believed that a “text that reserved a certain number of places for women  .  .  . without doing the same for men . . . would be contrary to the principle of equality.” Thompson, “From Restoration to Republic.” The Conseil based its decision on article 3 of the 1958 Constitution and article 6 of the 1789 Declaration. 13. Thompson, “From Restoration to Republic,” 206–­7. 14. Although Conservative president Jacques Chirac expressed support for parity, his center-­right coalition ran fewer than 20 percent female candidates during the elections of 2002. See Garance Franke-­Ruta, “Liberte, Egalite, Sororite,” Legal Affairs, January/February 2003, 30.



Sex Quotas and Burkini Bans

249

15. See Laure Bereni, Alice Debauche, Emmanuelle Latour, and Anne Revillard, “Entre contrainte et ressource: Les mouvements féministes face au droit,” Nouvelles Questions Féministes 29 (2010). 16. Gaspard, Sevran-­Schreiber, and Le Gall, Au pouvoir, citoyennes!, 51; see also Joan Wallach Scott, Parité! Sexual Equality and the Crisis of French Universalism (Chicago: University of Chicago Press, 2005). 17. Loi 99-­569 du 8 juillet 1999 relative à l’égalité entre les femmes et les hommes, Journal Officiel de la République Française (July 9, 1999), 10175, https://www​ .legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000396412&categorieLi en=id. Enforcement mechanisms varied depending on the type of election. France’s semi-­proportional system includes municipal, regional, European, and some senatorial elections that follow party lists, while others, notably National Assembly elections, require voters to select a particular candidate. See generally Lépinard, L’égalité introuvable. In list elections, prefectures would refuse to present nonconforming lists on the ballot. For executive posts and National Assembly seats, a party’s candidates overall must be composed half of women and half of men, and noncompliant parties accordingly lose funding. Loi Organique No. 2000-­294 du 5 avril 2000 relative aux Incompatibilités entre Mandats Electoraux, Journal Officiel de la République Française (April 5, 2000), art. 141, https://www.legifrance.gouv.fr/affichTexte.do?cid Texte=JORFTEXT000000399110. 18. Any continued exclusion of women’s issues would be countered by the Observatoire de la parité and the Délégation de l’Assemblée Nationale, two governmental bodies that include several members of feminist associative networks, giving them the opportunity to be heard by the legislators. Laure Bereni, “Quand la mise à l’agenda ravive les mobilisations feministes: L’espace de la cause des femmes et la parité politique (1997–­2000),” Revue Française de Science Politique 59 (2009): 315–­16. 19. As Laure Bereni and her colleagues argue, Parité saw “State feminism” take a central role in the French state: “It’s the mobilization of this movement during the entire decade of the 1990s that permitted Parité’s claim to become part of the political agenda, the governmental and parliamentary instances of State feminism then played an essential role in the consolidation of the reform. Parité influenced, in return, the definition of the politics of State feminism, contributing to re-­situate at the highest level of politics, all while furnishing a new grammar for the promotion of women’s place in the professional sphere.” Bereni et al., “Entre contrainte et ressource.” 20. Étienne Balibar suggested this phenomenon: “there is a ‘racist’ utilization of feminism as there is a ‘sexist’ utilization of anti-­racism.” Étienne Balibar, Des Universels: Essais et Conférences (Paris: Editions Galilée, 2016), 22. 21. Loi 2004-­228 du 15 mars 2004 encadrant, en application du principe de laïcité, le port de signes ou de tenues manifestant une appartenance religieuse dans les écoles, collèges et lycées publics, Journal Officiel de la République Française (September 2, 2004), 5190, https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT 000000417977&categorieLien=id (hereafter Loi 2004-­228 du 15 mars 2004). See also Régis Debray, Ce que nous voile le voile: La Republique et le sacre (Paris: Folio, 2004), 228. The law only requires for large religious symbols to be banned from schools, but persons can still feel free to wear religious symbols in all other public

250

Darren Rosenblum

places. Students may also continue to express their views through writings and free speech while at school. Debray, Ce que nous voile le voile, 22. However lofty the goals of French universalism, and of Parity in including women, minority women’s identities are erased by this universalism that recognizes gender but ignores race. Minority women as a consequence may find their political voice only as culturally neutral (read “French”) women, and their racial and ethnic identity rendered invisible. 22. In 1989, Halimi supported the “dignity of woman because the veil is a sign of submission. This religious sign is an attack on laïcité.” “Gisèle Halimi sur le port du voile à l’école,” ina.fr, November 2, 1989, https://fresques.ina.fr/elles-centrepompi​ dou/fiche-media/ArtFem00115/gisele-halimi-sur-le-port-du-voile-a-l-ecole.html. See also Anne Chemin, “Burkini: Au nom de quoi peut-­on limiter la liberté vestimentaire des femmes?,” Le Monde, November 1, 2016, quoting the French argument before the European Court of Human Rights in the case challenging the veil ban. 23. Franco-­f rançais means not just French but francocentric. See Reverso ­D ictionary, s.v. “franco-­f rançais” (2016), http://dictionary.reverso.net. 24. Chemin, “Burkini.” 25. J. M. Wallace-­Hadrill and John McManners, eds., France: Government and Society (London: Methuen, 1970), 162; Jonathan Laurence, “The New French Minority Politics,” Brookings Institution, March 1, 2003, https://www.brookings.edu/articles​ /the-new-french-minority-politics/. 26. The law that established laïcité was the Loi du 9 décembre 1905 concernant la séparation des Eglises et de l’Etat, Journal Officiel de la République Française. The veil ban shifted the interpretation of laïcité from barring institutional recognition to barring individual expression as well. Chemin, “Burkini” (quoting Stephanie Hennette Vauchez). For an expert study of the transformation of laïcité in the twenty-­first century, see generally Stéphanie Hennette Vauchez and Vincent Valentin, L’Affaire du Baby Loup ou la Nouvelle Laïcité (Issy-­les-­Moulineaux: LGDJ, 2014). Based on laïcité, France even barred the collection of any data about race or ethnicity, due to past abuses in collecting ethnic data by government officials. Jonathan Laurence, “Islam in France,” Brookings Institution, December 1, 2001, https:// www.brookings.edu/articles/islam-in-france/; Laurence, “The New French Minority Politics”; Michel Troper, “French Secularism, or Laïcité,” Cardozo Law Review 21 (February 2000): 1277–­278; T. Jeremy Gunn, “Religious Freedom and Laïcité: A Comparison of the United States and France,” Brigham Young University Law Review 2004, no. 2 (Summer 2004): 428. France’s laïcité historically followed a norm that excluded sex equality. Florence Rochefort, “Ambivalences Laïques et Critiques Feministes,” in Le Pouvoir de Genre: Laïcités et Religions 1905–­2005 (Toulouse: Press Universitaires du Mirail, 2007), 65. 27. Laurence, “The New French Minority Politics.” 28. Florence Rochefort, Le Pouvoir de Genre: Laïcités et Religions 1905–­2005 (Toulouse: Press Universitaires du Mirail, 2007), 20. 29. Supporters of the veil ban include Gisèle Halimi, Élisabeth Badinter, the group Ni Putes Ni Soumises (Neither Whores nor Downtrodden), and the weekly magazine Elle. Françoise Gaspard, “Le Foulard de la Dispute,” Cahiers du Genre 3 (2006): 86. See Mayanthi L. Fernando, The Republic Unsettled: Muslim French



Sex Quotas and Burkini Bans

251

and the Contradictions of  Secularism (Durham, N.C.: Duke University Press, 2014). 30. Joan Scott linked French feminist adaptation of universalism with anti-­ immigrant sentiment. Joan Wallach Scott, “French Universalism in the Nineties,” Differences: Journal of Feminist Cultural Studies 15, no. 2 (2004): 32–­53. 31. Catherine Coroller, “Voile, L’heure des Temoins,” Libération, November 19, 2003, http://www.liberation.fr/grand-angle/2003/11/19/voile-l-heure-des-temoins _452317 (quoting Fadela Amara, president of Ni Putes Ni Soumises). 32. Françoise Gaspard and Farhad Khosrokhavar, Le foulard et la République (Paris: Éditions La Découverte, 1995). 33. Darren Rosenblum, “Parity/Disparity: Electoral Gender Inequality on the Tightrope of Liberal Constitutional Traditions,” University of California Davis Law Review 39 (2006): 1119 (interviewing Françoise Gaspard). 34. Gaspard, “Le Foulard de la Dispute,” 86. 35. Élisabeth Roudinesco, “Le foulard à l’école, étouffoir de l’altérité,” Libération, May 27, 2003, http://www.liberation.fr/tribune/2003/05/27/le-foulard-a-l-ecole​ -etouffoir-de-l-alterite_434944. 36. Loi 2004-­228 du 15 mars 2004, 5190. See also Debray, Ce que nous voile le voile. 37. Elisa T. Beller, “The Headscarf Affair: The Conseil d’État on the Role of Religion and Culture in French Society,” Texas International Law Journal 39, no. 4 (Summer 2004): 611. Although arguments were made that this law violates individual religious freedom, the National Assembly determined that banning large religious symbols in public schools fostered the educational purpose of the school by promoting equality instead of religious division. 38. Laurence, “Islam in France.” France implemented this law because of past abuses in collecting ethnic data by government officials. Laurence, “The New French Minority Politics.” 39. Vauchez and Vincent, L’Affaire du Baby Loup ou la Nouvelle Laïcité, 29–­30. 40. Jean-­François Copé, “La burqa n’est pas une exigence coranique,” Slate, July 4, 2009, http://www.slate.fr/story/7621/burqa-copé. 41. Jean-­François Copé, “Tearing Away the Veil,” New York Times, May 4, 2010, https://www.nytimes.com/2010/05/05/opinion/05cope.html. 42. Stéphanie Le Bars, “Pour Nicolas Sarkozy, ‘ce n’est pas un problème religieux,’” Le Monde, June 23, 2009, https://www.lemonde.fr/societe/article/2009/06/23/pour -nicolas-sarkozy-ce-n-est-pas-un-probleme-religieux_1210262_3224.html. 43. Copé, “La burqa n’est pas une exigence coranique.” 44. Ibid. 45. “Voile intégral: Gisèle Halimi pour une approche ‘graduée,’” Le Point, September 29, 2009, http://www.lepoint.fr/actualites-societe/2009-09-29/voile-integral-gisele​ -halimi-pour-une-approche-graduee/920/0/381452. 46. Joan Wallach Scott, “Feminism? A Foreign Import,” New York Times, May 20, 2011, https://www.nytimes.com/roomfordebate/2011/05/18/are-french-women​ -more-tolerant/feminism-a-foreign-import. 47. Ibid.

252

Darren Rosenblum

48. Eric Fassin, “L’après-­DSK: Pour une séduction féministe,” Le Monde, June 29, 2011. 49. In 2012, during the battle between François Fillon (France’s conservative presidential candidate) and Jean-­François Copé for the presidency of the party (UMP), Michèle Tabarot, a female member of the National Assembly, published an op-­ed (signed by numerous right-­w ing politicians and activists) explaining her support for Jean-­François Copé. Her main argument was that Copé’s “actions in favor of women” were rooted in the Parité law and the CBQ. She also lists the burqa ban before concluding that she supports Copé for “his sincere commitment in favor of women” considering, de facto, the burqa ban as being a law in favor of women. Michèle Tabarot, “Pourquoi nous votons pour Jean-­François Copé,” Le Figaro, September 30, 2012, http://www.lefigaro.fr/mon-figaro/2012/09/30/10001-20120930ARTFIG00163 -pourquoi-nous-votons-pour-jean-francois-cope.php. 50. Copé, “La burqa n’est pas une exigence coranique.” 51. Sarah Mower, “Hussein Chalayan Sent Fashion into the Stratosphere with His High-­Concept ’90s Shows,” Vogue, September 1, 2015, https://www.vogue.com/article​ /hussein-chalayan-alexander-mcqueen-audrey-marnay. “Most definitely no designer could attempt that now, but at the time Chalayan never meant to cause offense: ‘It was about how we define our territory culturally.’” Ibid. But see Gabriella Pounds, “Subverting the Avant-­Garde: Nudity and Inferiority in Hussein Chalayan’s Spring/ Summer 1998 Collection,” Courtauldian, March 4, 2016. 52. At the time, the New York Times said: “Hussein Chalayan proved he possessed such power with his spring 1998 collection in England last season, a provocative exploration of Islamic women’s place in society using the chador as the fulcrum.” Constance C. R. White, “Hussein Chalayan’s High-­Wire Act,” New York Times, April 21, 1998, https://www.nytimes.com/1998/04/21/style/hussein-chalayan-s-high-wire-act.html. The collection has drawn interest even many years later. See, e.g., Misanthrope, “Hussein Chalayan—­Burka (1996),” I Like Cats More Than People, November 1, 2010, http://ilikecatsmorethanpeople.blogspot.com/2010/11/hussein-chalayan-burka-1996​ .html. 53. S.A.S. v. France, 2014-­III Eur. Ct. H.R. 341. “The Court takes the view . . . that a State Party cannot invoke gender equality in order to ban a practice that is defended by women—­such as the applicant—­i n the context of the exercise of the rights enshrined in those provisions, unless it were to be understood that individuals could be protected on that basis from the exercise of their own fundamental rights and freedoms.” Ibid., 370. 54. Ibid. 55. Ibid. 56. Ibid. 57. “[A] State which enters into a legislative process of this kind takes the risk of contributing to the consolidation of the stereotypes which affect certain categories of the population and of encouraging the expression of intolerance, when it has a duty, on the contrary, to promote tolerance.” Ibid. 58. Loi 2011-­103 du 27 janvier 2011 relative à la représentation équilibrée des femmes et des hommes au sein des conseils d’administration et de surveillance et à l’égalité professionnelle, Journal Officiel de la République Française (January 28,



Sex Quotas and Burkini Bans

253

2011), https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT0000234 87662&categorieLien=id. 59. Mixité is a French term meaning sex diversity, but the “mixing” implies a mixing of the two sexes. The use of this distinct term reflects a central distinction drawn in the French context, even as diversity remains central in the United States. While mixité refers to a clear binary of male/female that is widely accepted in France, “diversity” carries a broader meaning in the United States.  60. See generally Aaron Dhir, Challenging Boardroom Homogeneity: Corporate Law, Governance, and Diversity (New York: Cambridge University Press, 2015). Women had achieved substantial levels of equality in most other sectors, and feminist activists such as Mari Teigen began to consider quotas as a way to balance the corporate sector. Cultural biases and the binarist allocation of child rearing to females had left few women in the pool for corporate leaders, especially at the highest levels. Norway successfully implemented a corporate board quota in 2003, requiring that 40 percent of all boards be women. Darren Rosenblum and Daria Roithmayr, “More Than a Woman: Insights into Corporate Governance after the French Sex Quota,” Indiana Law Review 48, no. 3 (2015): 895 (interviewing 25F). 61. Rosenblum and Roithmayr, “More Than a Woman” (interviewing Marie-­Jo Zimmermann). 62. Ibid. See also Marie-­Jo Zimmermann et al., “Marie-­Jo Zimmermann: un Engagement Dans L’espace de la Cause Des Femmes,” Histoire@Politique 87, no. 17 (2012): 87–­97. In another interview, Zimmermann explains, “I still do not define myself as a feminist but others consider me as one, so I guess I must be one of them.” Interview with Marie-­Jo Zimmermann, Representative in the Assemblée Nationale of France, Paris, France, December 2, 2011, at 895. 63. Forty percent surpasses the 30 percent critical mass level, the minimum inclusion required for a minority to affect a deliberative body. Below one-­t hird representation, the minority essentially becomes token. Rosabeth Moss Kanter, The Men and Women of the Corporation (New York: Basic Books, 1977). 64. Olivier Auguste, “Les Grandes Entreprises Promettent la Parité,” Le Figaro, April 19, 2010, http://www.lefigaro.fr/entreprise/2010/04/19/05011-20100419ART​ FIG00680-les-grandes-entreprises-promettent-la-parite-.php. The legislature first adopted a corporate sex quota in 2006, but the Constitutional Council struck it down, notwithstanding the constitutional amendment that had enabled the Parité quota to be enacted, as the Council considered quotas in the corporate context to be a separate issue from the Parité quota. In response to the court’s decision, the legislature amended the Constitution again in 2008 to allow quotas to promote women “to positions of professional and social responsibility” and to establish the duty “to promote Parité as fundamental constitutional law.” Julie C. Suk, “Gender Parité and State Legitimacy: From Public Office to Corporate Boards,” International Journal of Constitutional Law 10, no. 2 (March 2012): 451–­52. 65. Loi 2011-­103. 66. Ibid. 67. Aagoth Storvik and Mari Teigen, “Women on Board: The Norwegian Experience,” Friedrich Ebert Stiftung (June 2010): 4. 68. Code de commerce, arts. L225-­17, L225-­69, L226-­4 (Fr.).

254

Darren Rosenblum

69. See Veronique Magnier and Darren Rosenblum, “Quotas and the Transatlantic Divergence of Corporate Governance,” Northwestern University Law Review 34, no. 2 (Spring 2014): 249–­98. Firms subject to the requirement included (1) private companies and joint-­stock companies issuing shares and admitted for trading on a regulated market and (2) French corporations that, for three consecutive fiscal years, employed at least five hundred permanent staff members and produced an annual revenue or balance sheet total of at least €50 million. See Code de commerce. 70. Magnier and Rosenblum, “Quotas and the Transatlantic Divergence of Corporate Governance.” The French quota stopped short of the Norwegian penalty of dissolution for noncompliant firms. “Rules Regarding Gender Balance within Boards of Public Limited Companies,” Regjeringen.no, December 20, 2005. 71. Karima Bouaiss and Agnes Bricard, “Femmes Administrateurs dans le SBF 120 en 2013: Un État des Lieux,” Federation des Femmes Administrateurs (2014), http://www.federation-femmes-administrateurs.com/wp-content/uploads/2014/02​ /les-femmes-administrateurs-au-sein-des-conseils-dadministration-des-societes-du -sbf-120-en-2013.pdf. 72. Ibid. By 2013, of the SBF-­120 companies (the 120 largest capitalization French firms), two-­thirds of the companies had between 20 percent and 40 percent of women on their boards, 5 percent exceeded 40 percent of women on their boards, and 83 percent of women held only one directorship. 73. Smaller companies face more problems with compliance. There are few women in top executive positions, under 6 percent. In a 2016 report, the Haut Conseil à l’Égalité entre les Femmes et les Hommes, a government agency, concluded that large firms would meet the goal, but medium companies will fall short. Danielle Bousquet, Brigitte Grésy, Réjane Sénac, Sébastien Point, and Caroline Ressot, “Towards Equal Access of Women and Men to Positions of Professional Responsibility: Proportion of Women on Boards,” Haut Conseil à l’Égalité entre les Femmes et les ­Hommes (February 10, 2016): 9, http://www.haut-conseil-egalite.gouv.fr/IMG/pdf​ /hce_rapport_parite_eco_eng_20160209-2.pdf. 74. Tara Deronzier, “La France est le Pays Qui Compte le Plus de Femmes Dirigeantes,” focuSur.fr, June 13, 2014, https://www.focusur.fr/actualites/2014/06/13 /la-france-est-le-pays-qui-compte-le-de-femmes-dirigeantes. 75. Jean-­François Copé, “Remarks at the Association France-­A mériques Event: Les femmes au conseil d’administration: ça change quoi?” (September 26, 2011). 76. Marie-­Jo Zimmermann, “Panel at the French National Assembly Conference” (June 2015). Integrisme references any religious fundamentalism, although in recent years it has been used solely to reference Muslim extremism. 77. Darren Rosenblum, “Feminizing Capital: A Corporate Imperative,” Berkeley Business Law Journal 6 (2009): 87. 78. This gold rush had the support of French corporate leadership. The Institut Français des Administrateurs, along with “the union of bosses,” AFEP (Association française des entreprises privées / MEDEF (Mouvement des entreprises de France), engaged fully in the efforts to implement the CBQ. See Cécile Daumas, “Davantage de femmes à la table des patrons,” Libération, January 20, 2010, http://www.libera​ tion.fr/futurs/2010/01/20/davantage-de-femmes-a-la-table-des-patrons_605353. It created a directory of CAC 40 directors with detailed profiles in order to make it



Sex Quotas and Burkini Bans

255

easier to hire women. Institut Français des Administrateurs, “Journée Annuelle des Administrateurs 2010: Les Nouvelles Dynamiques du Conseil,” Administrateur: La Lettre De l’IFA 21 (2010): 3. In some sense, this effect may reflect Frances Olsen’s work decades ago on how the intermingling of public norms that give rise to private goals as parties outside the state take advantage of the regulatory regime. See also Frances E. Olsen, “International Law: Feminist Critiques of the Public/Private Distinction,” in Reconceiving Reality: Women and International Law, ed. Dorinda G. Dallmeyer (Washington, D.C.: American Society of International Law, 1993), 157–­59. 79. There are more than four hundred women’s social networks today in France. “Les réseaux féminins permettent-­i ls aux femmes de réussir dans l’entreprise?,” Ressources Humaines, December 18, 2013. For examples of social groups, see, e.g., Femmes 3000 Federation nationale, http://www.femmes3000.fr (created in 1998 to promote women’s visibility and equality in public and private contexts); Administration Moderne, http://www.administrationmoderne.com (created in 1998 as the first women senior official association that fights for sex equality in the administration); Accent Surelles,http://www.accentsurelles.fr (created in 2004 to help women with careers in big administrations and companies); Action de Femme, http://www​ .actiondefemme.fr (association with the goal to promote women on Boards of Directors of big companies); Arborus, http://www.arborus.org (an association, created by the European Observatory of Equality, that contains various associations and firms with the goal of helping promote equality in management); Professional Women’s Network, http://www.pwnglobal.net/ (global federation with three thousand members that was created to promote women in business firms in Europe and provide networking and training platforms for professional women). 80. Women’s Forum for the Economy & Society, http://www.womens-forum.com. For example, Fédération Femmes Administratuers was created after the Copé-­ Zimmermann law to help women to be ready to work in CAC 40 administrations. Fédération Femmes Administrateurs, http://www.federation-femmes-administrateurs​ .com/. Fédération Femmes Administrateurs is a network in which experienced women can help nonexperienced women in their careers. This federation brings together diverse associations like Association Femmes AAA+, which was created in January 2011 to promote women lawyers in director positions of big companies, but also Association Administration Moderne, created in 1998, and Association des Femmes Diplômées d’Expertise Comptable Administrateur, which was created after the quota law was passed requiring that boards in CAC 40 firms reach the goal of a 40 percent composition of women directors. 81. Quotas may prove useful even if the least progressive women attain power through them—­one could argue that they would still advance gender balance more than the patriarchal leftovers that occupy our corporations and government. Flipping the male/female binary toward a more balanced power relationship would entail undermining entrenched subordinations, including those of gender inequality. See Michel Pinçon and Monique Pinçon-­Charlot, Sociologie de la Bourgeoisie (Paris: La Découverte, 2005). 82. Darren Rosenblum, “Manning Up” (manuscript on file with the author). 83. Scholars have begun to label the way in which men have dominated political and corporate elites as “men’s overrepresentation.” Increasing women’s political and

256

Darren Rosenblum

corporate representation reduces male advantages in leadership. If men no longer benefit from an extensive advantage in leadership competition, it would prove quotas’ efficacy. See Elin Bjarnegår and Rainbow Murray, “The Causes and Consequences of Male Over-­Representation: A Research Agenda,” European Consortium of Political Research (2015), https://ecpr.eu/Filestore/PaperProposal/88304081-30f9-4fe6 -902a-d2323f3b37c9.pdf. 84. Some economists have argued that some men supported Parité because they believed it increased their incumbency power and dominance. Guillaume R. Fréchette, François Maniquet, and Massimo Morelli, “Incumbents’ Interests and Gender Quotas,” American Journal of Political Science 52, no. 4 (2008): 891–­909. Even if that study’s assertion faced criticism, it exposes the political complexity around Parité. 85. People may transition from one sex to another or occupy a middle ground as a third sex or intersex people. They may also change from one gender to another, with or without medical assistance, without the purpose of “passing” as the other gender. Categories such as “drag queens,” “drag kings,” and “genderfuck” include people who play around with gender identity and may not fall into such easy categorizations. See generally Kate Bornstein, Gender Outlaw: On Men, Women, and the Rest of Us (New York: Routledge, 1994), 65–­69. 86. See Darren Rosenblum, “Unsex Mothering: Toward a New Culture of Parenting,” Harvard Journal of Law & Gender 35 (January 2012): 94. 87. Sex-­neutral parental leave laws, as I have argued, affect men and women differently, particularly where women hold family responsibilities and men face stigma for taking leave. Here we can note that some Scandinavian leave laws incentivize both parents within a family structure to take parental leave. “European Platform for Investing in Children,” European Commission, http://europa.eu/epic/countries/sweden /index_en.htm. Families where both parents take leave receive, in aggregate, more time. Given heterosexual dominance, this incentivizes men to take leave. 88. As women come to dominate higher education, perhaps reaching as high as two-­t hirds of students, quotas may eventually protect men. See Frank Deford, “Unfair Advantage: Annual Title IX Ax Is about to Fall on Men’s Sports,” Sports Illustrated, May 2, 2007; Rosenblum, “Loving Gender Balance,” 2885. 89. Copé, “La burqa n’est pas une exigence coranique.” 90. Anne Sweigart, “Women on Board for Change: The Norway Model of Boardroom Quotas as a Tool for Progress in the United States and Canada,” Northwestern Journal of International Law & Business 81A, no. 32 (2012): 103A. 91. Adrien Sénécat, “Petite histoire du ‘burkini,’ des origines aux polémiques,” Le Monde, August 16, 2016, https://www.lemonde.fr/les-decodeurs/article/2016/08/16​ /petite-histoire-du-burkini-des-origines-aux-polemiques_4983599_4355770.html. 92. Michel Houellebecq, La Soumission (Paris: Flammarion, 2015). 93. Yohan Blavignat et al., “Plusieurs communes interdisent désormais le burkini sur leurs plages,” Le Figaro, August 16, 2016, http://www.lefigaro.fr/actualite​ -france/2016/08/16/01016-20160816ARTFIG00290-plusieurs-communes​-inter​ disent-desormais-le-burkini-sur-leurs-plages.php (referencing specific examples such as the burqa or patently oversized cross or star). 94. Penalties and enforcement for wearing a burkini vary widely. See, e.g., ibid.; Allain Auffray and Laure Equy, “Le burkini interdit dans une quinzaine de



Sex Quotas and Burkini Bans

257

communes,” Libération, August 19, 2016, http://www.liberation.fr/france/2016/08/19​ /le-burkini-interdit-dans-une-quinzaine-de-communes_1473469. One interviewee from the Collective against Islamophobia in France explained that “Islamophobia is very emotional, there’s not only a religious element, there is a sexist element and a racist element and with the burkini there’s a real need to control women’s bodies.” Alissa J. Rubin, “Fighting for the ‘Soul of France,’ More Towns Ban a Bathing Suit: The Burkini,” New York Times, August 17, 2016, https://www.nytimes.com/2016​ /08/18/world/europe/fighting-for-the-soul-of-france-more-towns-ban-a-bathing -suit-the-burkini.html. 95. Faïza Zerouala, “Le règlement controversé de Wissous-­Plage à nouveau suspendu par la justice,” Le Monde, August 12, 2016, https://www.lemonde.fr/societe​ /article/2014/08/12/le-reglement-controverse-de-wissous-plage-a-nouveau-suspen​ du-par-la-justice_4470635_3224.html. 96. “Le maire du Touquet n’a jamais vu un burkini, mais il l’interdit,” L’Express, August 16, 2016, https://www.lexpress.fr/actualite/societe/le-maire-du-touquet-n-a -jamais-vu-un-burkini-mais-il-l-interdit_1821707.html. 97. Loi 2010-­1192 du 11 octobre 2010 interdisant la dissimulation du visage dans l’espace public, Journal Officiel de la République Française (October 12, 2010), 18344. 98. Mathieu Bock-­Côté, “Burkini: Derrière la laïcité, la nation,” Le Figaro, August 18, 2016, http://www.lefigaro.fr/vox/politique/2016/08/18/31001-20160818ARTFIG 00185-condamner-le-burkini-pour-sauver-la-nation.php. 99. Angelique Chrisafis, “French PM Supports Local Bans on Burkinis,” Guardian, August 17, 2016. 100. However, Manuel Valls does not support a national ban. In this interview, he also talks about the lack of enforcement of the ban on burqas. Frédéric Cheutin, Jean-­Michel Marcoul, and Denis Trossero, “Valls sur le Burkini: ‘Une vision archaïque de la place de la femme dans l’espace public,’” La Provence, August 17, 2016, https://www.laprovence.com/article/politique/4078328/valls-sur-le-burkini-une -vision-archaique-de-la-place-de-la-femme-dans-lespace-public.html. 101. Rubin, “Fighting for the ‘Soul of France.’” 102. See also Lucile Quillet, “Laurence Rossignol sur la mode islamique: ‘Les marques font la promotion de l’enfermement du corps des femmes,’” Madame Le Figaro, March 30, 2016, http://madame.lefigaro.fr/societe/laurence-rossignol-indigne​ -mode-islamique-marques-musulmanes-rmc-300316-113612. 103. Alice Pfeiffer, “La mode hisse les voiles,” Le Monde, May 2, 2016, https://www​ .lemonde.fr/m-styles/article/2016/05/02/la-mode-hisse-les-voiles_4911939​ _4497319.html. 104. “Fasquelle Justifie son Arrêté Anti-­burkini en Évoquant des ‘Risques de Noyade,’” L’express, August 27, 2016, https://www.lexpress.fr/actualite/monde/fasquelle​ -justifie-son-arrete-anti-burkini-en-evoquant-des-risques-de-noyade_1824881​ .html; see also Aurelien Breeden and Lilia Blaise, “Cannes, Citing Security Risks, Bans Full-­Body ‘Burkinis’ from Its Beaches,” New York Times, August 12, 2016, https://www.nytimes.com/2016/08/13/world/europe/cannes-muslims-burkini-ban​ .html (citing Arrêté 16/2754 du 28 juillet 2016 du maire de Cannes, Decree 16/2754 of July 28, 2016, of the Mayor of Cannes Banning the Access to the Beaches and the Act of Swimming to Any Person Not Wearing a Proper Attire).

258

Darren Rosenblum

105. See Breeden and Blaise, “Cannes, Citing Security Risks, Bans Full-­Body ‘Burkinis’ from Its Beaches.” 106. Mme. Meye, Tribunal Administratif de Nice, August 13, 2016, NC 1603470. 107. The Conseil d’État explained that public authorities’ main role is to guarantee individual liberties. The only exception is if, and only if, public order cannot be guaranteed (e.g., by more police forces). Conseil d’État, August 26, 2016, 402742 (Fr.), http://www.conseil-etat.fr/Decisions-Avis-Publications/Decisions/Selection-des​ -decisions-faisant-l-objet-d-une-communication-particuliere/CE-ordonnance-du​ -26-aout-2016-Ligue-des-droits-de-l-homme-et-autres-association-de-defense​ -des-droits-de-l-homme-collectif-contre-l-islamophobie-en-France. Such bans faced legal challenges because localities passed them without any national action. Thomas Hochmann, “L’interdiction du ‘burkini’ est une faute juridique et politique,” Le Monde, August 19, 2016. 108. Ibid. The Conseil d’État first analyzed the competence of the mayors issuing public orders. Mayors have to balance maintaining public order and respecting individual freedoms. Any restriction of beach access shall be necessary, proportionate, and adapted and has to be taken for one of the following reasons: proper access to the shore, swimming safety, hygiene, and decency. Mayors cannot base their decision on accounts other than known (or proven) risks to public order. The local ordinance of Villeneuve-­Loubet described no risk of public disorder coming from people wearing certain types of bathing attire. The emotion and anxiety arising from the Nice terrorist attack were not enough to legally justify the ban. The mayor of Villeneuve-­Loubet therefore acted beyond his powers. The local ordinance presented a serious and obvious violation of fundamental freedoms, notably the freedom of movement and the freedom of conscience. 109. Ibid. 110. Ibid. 111. Stéphanie Hennette Vauchez, “Le burkini de l’état d’urgence,” Libération, ­August 23, 2016, http://doyoulaw.blogs.liberation.fr/2016/08/23/et-le-burkini-devint​ -debat-national/. 112. Julia Mariton, “Légiférer pour interdire c’est simplement prendre le risque que les foulards revendicatifs se multiplient,” La Nouvelle République, September 5, 2016, https://www.lanouvellerepublique.fr/france-monde/legiferer-pour-interdire​ -c-est-simplement-prendre-le-risque-que-les-foulards-revendicatifs-se-multiplient. 113. Guillaume Descours, “La diversité progresse à l’Assemblée Nationale,” Le Figaro, June 20, 2017, http://www.lefigaro.fr/elections/legislatives/2017/06/20/38001​ -20170620ARTFIG00139-la-diversite-progresse-a-l-assemblee-nationale.php. 114. Jean-­Marie Pottier, “L’Assemblée Nationale est enfin a l’image du pays,” Slate, June 19, 2017. 115. Ali vigorously insisted that her veil is a local custom of Mayotte and not a Muslim one. La1ere.fr (@la1ere), “La députée de #Mayotte, Ramlati Ali, répond à la polémique naissante sur son ‘voile’ (qui est en fait un châle),” Twitter, July 3, 2017, 2:25 p.m., https:// twitter.com/la1ere/status/881957147113918465?ref_src=twsrc​ % 5Etf w&ref​ _url=http%3A%2F%2Fwww.huffingtonpost.fr%2F2017​%2F07%2F05%2Fla-deputee​ -de-mayotte-ramlati-ali-critiquee-pour-son-chale_a​_23016706%2F.



Sex Quotas and Burkini Bans

259

116. “Replay du 4 février 2017 à Lyon,” En Marche!, February 4, 2017, https://en -marche.fr/article/meeting-macron-lyon-video; “Relive the Intervention of Emmanuel Macron,” an episode of the radio program RTL Matin, hosted by Elizabeth Martichoux, http://www.rtl.fr/actu/politique/emmanuel-macron-est-l-invite-de-rtl-mercredi​ -5-octobre-et-repondra-a-vos-questions-7785111162. 117. Inclusion of sex difference supports arguments of democratic legitimacy. Julie Suk emphasizes the central role played by the corporatist tradition in the passage of the law in France and the way in which the law functions to legitimize the democratic state. See Suk, “Gender Parité and State Legitimacy.”

This page intentionally left blank

PA R T I I I

IDEOLOGICAL TRAJECTORIES FOR GFEMINISTS

This page intentionally left blank

C H A P T E R 11

From Bad to Worse via a Successful Constitutional Challenge The Tragedy of Feminist Engagement with Prostitution Law Reform in Canada MARIANA VALVERDE

In this chapter I recount a story with important implications for feminists around the world working on sexuality and the law. Many feminist lawyers and scholars around the world heard about the Supreme Court of Canada’s important 2013 decision striking down the main prostitution laws as unconstitutional, but there is not yet any published research on what the story of prostitution law reform in Canada tells us about feminism. Here, I draw on my experiences of the 1980s, when I was active as a public intellectual in the feminist “sex wars,” and also on more recent activities related to sex work law, experiences on the border between the academy and the street.1 Relying on one’s often self-­ serving memories is problematic; but to write this chapter I supplemented my observations and informally acquired information with twelve interviews carried out in the winter of 2014–­15. In contrast with many other stories in this book, the story recounted here tells us more about the failure of all types of feminism to have an impact on public policy—­despite investing considerable energies on the field and despite major activity in both judicial and legislative arenas—­ than it is about the successes of any one version of feminism. The story of how a successful constitutional challenge in 2013 was followed by a new anti-­feminist law in 2014 has one lesson in keeping with this anthology: that feminists pursuing law reform cannot trust right-­w ing bedfellows. But other lessons can also be drawn, by and for those 263

264

Mariana Valverde

left-­wing feminists who favored decriminalization and spent much energy on the constitutional challenge to the old laws. The first is that focusing energies on constitutional challenges can lead to a dangerous neglect of the legislative and regulatory arenas; and the second is that small groups of feminists who try to shape public policy in the absence of a strong and relatively coordinated women’s movement are likely to end up completely marginalized.

An Eventful Year in Prostitution Law Reform In December 2013, sex workers and their allies (including many around the world) were thrilled to see the Supreme Court of Canada strike down Canada’s three main prostitution-­related laws, provisions similar to those found throughout the common-­law world.2 The Court concluded that the laws prohibiting street soliciting and brothels, as well as a “procuring” law that erased the distinction between pimping and more mundane relationships, were unconstitutional. The key reason given by the unanimous court for striking down the three laws was that their documented effects, intended or not, increased the insecurity of sex workers, contrary to the constitutional guarantee of “security of the person” (section 7 of the Charter of Rights and Freedoms). “Safety” and “security” were the key words of the decision. By contrast, discussions of freedom of speech and gender equality (two other constitutionally protected rights) were very muted in the arguments presented at trial and were completely sidelined in the Supreme Court’s judgment.3 Stressing that criminal laws effectively added to the vulnerability of sex workers was legally useful, indeed essential, given Canadian jurisprudence on the state’s duty to cause no harm (or no further harm). A fairly conservative Supreme Court had decided, two years before, that public health and epidemiological data on the beneficial effects of safe-­ injection sites sufficed to stop the federal Conservative government’s plan to close down Vancouver’s safe-­injection clinic, a clinic operating with provincial health ministry support but in breach of federal drug laws (Canada [Attorney General] v. PHS Community Services Society, 2011 SCC 44). The “state must not cause additional harm” logic of the PHS decision served the sex workers challenging the laws well. But relying almost completely on the argument of the additional harm to this group posed by criminal laws, however useful in the



From Bad to Worse via a Successful Constitutional Challenge

265

short-­term for litigation purposes, had political implications that worried many sex workers and their advocates. The broader political-­ legal context, in Canada as in Europe, was and remains the transnational dissemination of new laws that paternalistically label all prostitution as inherently exploitative and criminalize all customers, in such a way as to make sex work individualized, secretive, and dangerous—­t he “Nordic” model of sex-work reform.4 Thus, stressing the “harm to sex workers” argument at the Supreme Court was a strategy with political risks for those (including the three sex workers who won at the Supreme Court) who favored decriminalization rather than a Nordic-­style law “protecting” women and criminalizing male customers. Indeed, taking advantage of the global trend toward the Nordic model, 5 the Conservative government, when forced by the Supreme Court to write a new law, cherry-­picked a radical feminist phrase about prostitution being inherently exploitative to decorate a new law: the “Protection of Communities and Exploited Persons Act,” passed in December 2014, which is far more draconian and anti-­feminist than the Nordic model of customer-­criminalization laws.6 Contrary to the “exploited persons” of the law’s title, in the new law sex workers are recriminalized if they work on the street and happen to be near a school or playground. Sex workers can also be criminalized under the “material benefit” clause (a revised, rather vague procuring law) if they work in groups, whether off the street, on the street, online, or in any other way, since the “deriving material benefit” clause does not contain an exception for sex workers working together. For example, escorts who are financially autonomous but split the rent for a condo that they use at different times—­a common situation in large cities—­ could be prosecuted under this clause.7 And unlike other Nordic-­style laws, the new Canadian legislation completely prohibits all sex work advertising, including anywhere on the Internet. An exception is made for sex workers advertising their own services; but anyone who posts or publishes another person’s sex ad (and not just on Canadian-­ based websites) is liable to criminal prosecution. (This provision, as interpreted by the owners of websites that sex workers, especially escorts, rely upon, has already led to increased vulnerability, in that website owners reportedly tell women who buy web space that they cannot be explicit about what services they do or do not provide; and

266

Mariana Valverde

because male customers avoid using their real names for fear of prosecution, escorts feel and probably are less safe.) The law also contains a number of unrelated law-­and-­order provisions, such as increased sentences for sex trafficking (which was and remains a separate offense, not included in the Bedford 2013 challenge) and new categories and harsher procedures for sex offender registries. The law is thus more of a mixed bag than a coherent statement; and the mixed bag contains clauses that either directly or indirectly pose new legal risks for the very women who are described as inherently exploited in the “whereas” clauses and in the title of the statute. The government stopped short of criminalizing most sex workers; such a move would have been totally at odds not only with the Supreme Court decision but also with Canadian public opinion.8 But while taking up, selectively, the language of victimization and exploitation, the law makes it impossible for sex workers to conduct business in an organized and safe manner. Instead, it encourages isolation and secrecy, factors that—­t he Supreme Court had pointed out—­i ncrease danger. The law’s effects are difficult to see and document. Criminal lawyers and sex workers report that the law is, as of this writing, rarely enforced. Indeed, the Vancouver police chief openly stated that his department would not enforce the new provisions of the 2014 law,9 and since Vancouver has the country’s most visible street trade, this announcement had broader implications. As of October 2015, the law’s legitimacy and impact on police practice had become even more tenuous, when the Conservative government was soundly defeated at the polls and replaced by the Liberal party, which had voted against the law when it was introduced. During the summer of 2017, the ruling Liberals held consultations with sex worker groups and others, but if there is a plan for a new law, it has not been discussed in public. On the ground, sex workers report an increased use of the trafficking provisions (which can apply to situations formerly covered by the “living off the avails” pimping statute), not only to lay charges but also to disrupt sectors of the industry employing migrant women, with some dozens having been deported as a result of anti-­trafficking investigations. The purpose of this chapter, however, is not to give an authoritative account of what the law is now or how law enforcement agents including immigration and municipal inspectors have continued to police and punish sex workers by working around the prostitution law. The



From Bad to Worse via a Successful Constitutional Challenge

267

purpose is to reflect on feminist political activity around sex-­work law. In order to do that, it is necessary to begin in the 1980s, when prostitution law reform first gained national feminist attention.

Feminist Involvement in Prostitution Law in the 1980s: A National Voice In the early 1980s, as part of the rising “violence against women” movement, the issue of pornography gained much visibility in feminist circles, in Canada as in the United States. The Liberal government of the day, unwilling to enter waters that were controversial among both feminists and party members, decided to use the tried-­ and-­true tactic of the national expert committee to gauge opinion and postpone action. A special committee was formed to gather evidence, hold hearings across the country, and recommend legislative changes. That was already a major task, given the then-heated debates among feminists and others about pornography, violence against women, freedom of speech, and so on; but this committee was also entrusted with the equally daunting task of proposing changes to the criminal laws governing prostitution. Known as the Fraser Committee after its chairman, the expert national body was convened in 1983. At the time, much feminist energy was then going into attempting to redefine the “harm” of pornography in a gendered direction, but the issue of prostitution had little visibility in Canadian (or in American) feminist circles. As a matter of fact, many feminist groups (such as the one I belonged to, in Toronto) started to think about their position on prostitution only when their input into the Fraser Committee hearings was solicited. For decades, in Canada (as in other countries), prostitution had been constructed in the public arena not as a deeply gendered issue (as it is today) but rather as primarily a matter of urban nuisance and the policing of disorder. In 1978, the Supreme Court decision in R v. Hutt told police officers that they could no longer arrest street-­based women for soliciting—­as they had long done—­unless the soliciting was proven to be “pressing and persistent.” This judicial move caused a veritable frenzy among police chiefs and city leaders, many of whom were in any case undertaking “moral clean-­up” campaigns in inner cities using

268

Mariana Valverde

tactics similar to those famously used, later on, by New York City mayor Rudy Giuliani.10 Thus, when the Fraser Committee received its dual mandate, it was assumed that in regard to prostitution only street soliciting laws needed to be examined. And street soliciting, although not completely de-­gendered, was generally subsumed under the “broken windows” popular criminological frame. At a time when Canadian criminal justice policy was still largely dominated by expert evidence (in contrast to later populist symbolic uses of criminal law), the Fraser Committee’s highly publicized and well-­f unded cross-­country hearings prompted feminist groups who had already expressed an interest in pornography/obscenity law to also think about prostitution. Most groups had little, if any, existing policy to guide their presentations. Thus, one established group with close ties to the governing Liberals, the Canadian Advisory Council on the Status of Women, made the legally bizarre suggestion that all street soliciting for any purpose, not just purchasing sexual services, ought to be criminalized.11 Sex workers themselves lacked a national organization, a major handicap when a national committee is convened. They were represented by two small local groups, the Vancouver-­based Alliance for the Safety of Prostitutes and the Toronto-­based Coalition for the Rights of Prostitutes. Both of them advocated decriminalization, but their voices were weak. Most interesting, in retrospect, was the appearance, on her own behalf rather than representing a group, of well-­k nown feminist law professor Constance Backhouse. What she presented by way of a recommendation was an early version of the Swedish/Nordic approach—­which had not yet been invented even in Sweden. Her recommendation was that all purchases of sex should be subject to criminal penalties, including those transactions taking place in private (for example, escort work). This took the committee quite by surprise. In their report, they treated Backhouse with the same respect as every other witness, but they were clearly shocked that a law professor would contemplate abolishing the distinction between public disorder and private transactions. The committee stated that if Backhouse’s proposal were implemented, “society would need a repressive form of morals police to enforce such a broadly based prescription,” taking it for granted that no liberal legal system could possibly countenance such invasive



From Bad to Worse via a Successful Constitutional Challenge

269

policing.12 (Canada does not have the same “right to privacy” jurisprudence as the United States, but in 1968 major reforms to the Criminal Code had been carried out, operationalizing Prime Minister Pierre Trudeau’s famous principle that “the state has no place in the bedrooms of the nation.”13) With the development of the Nordic law still to come, Backhouse thus looked to the Fraser Committee like an oddball, an isolated feminist. That outlier status was confirmed as the country’s most powerful and representative group, the six-­hundred-­ member coalition National Action Committee on the Status of Women (NAC), made the organization’s views known. For NAC to have any official views, its national convention had to produce them, given its character as a national coalition of women’s groups. Thus, work had to be done well before the Fraser Committee hearings. Now, generating a unified position on sex-­work law was a monumental challenge. NAC’s member groups ranged from the YWCA and the women’s committees of the major Protestant denominations to small socialist-­feminist activist collectives such as the one to which I then belonged, Toronto’s International Women’s Day Committee (IWDC). I was one of a handful of IWDC members who attended NAC’s 1983 convention in Ottawa and helped to ensure (in part through clever use of floor microphone tactics learned from the trade union movement) that NAC took a position in favor of decriminalizing prostitution. The resolution was carried—­a lthough my own sense was that many, probably most, of the thousands of women belonging to NAC through organizations such as the YWCA would be unhappy with the resolution. But policy was policy. NAC thus prepared a brief to the Fraser Committee that laid out two possible tracks—­one, decriminalization, and another, more realistic one, that reformed the law in a less coercive direction. The brief is no longer publicly available, unfortunately, but the Fraser Committee cited it at great length and gave it a great deal of weight. According to the summary given in the Fraser Report, NAC first asked for the repeal of the soliciting law and “in the alternative” asked that the existing law—­which as mentioned earlier had been seriously weakened by the 1978 Hutt decision—­should not be restored to its previous strength. Second, NAC asked for the repeal of the anti-­brothel (“common bawdy house”) laws, stating that, “in the alternative” the law should be modified to allow prostitutes to work out of their own

270

Mariana Valverde

homes. NAC finally recommended that the street nuisances associated with soliciting should be dealt with by local regulation, not criminal sanctions.14 Much to the surprise of decriminalization feminists such as those in my Toronto group, the Fraser Committee ended up taking up, in a modified manner, NAC’s idea about legalizing indoor, small-­scale sex work. They suggested that an exception to the anti-­brothel law should be made to legalize one or two women working out of an apartment (though this would have required municipal licensing reforms not within the control of the federal government 15). It is very likely that NAC’s by no means predictable position in favor of decriminalization was an important factor in the decision of the expert committee to issue this controversial recommendation. As it turned out, however, before the Fraser Committee had issued its voluminous report, the Liberal government that had brought it into being was voted out of office and replaced by the Progressive Conservative government of Prime Minister Brian Mulroney. The committee’s recommendations were predictably ignored. Parliament moved instead to pass a street soliciting law that was truly draconian, banning “all communication in a public place for the purpose of prostitution.”16 This law was scrutinized by the Supreme Court in 1990, but this was a “Reference” case—­that is, a question posed to the Supreme Court by government, directly, not by way of a criminal appeal—­and thus governments controlled the evidence and the arguments, with sex workers and their supporters being reduced to the role of interveners (“amicus,” in the United States). Although the two women judges then on the Supreme Court concluded that the soliciting law was overbroad and suggested that municipal regulation, not criminal law, should be deployed to regulate the nuisances associated with street soliciting, the majority upheld the draconian law (Reference Re ss. 193 and 195 of the Criminal Code of Canada, 1 SCR [1990]). In the 1990s and into the new century, governments came and went, but legislative action on prostitution was never a priority for anyone other than sex workers themselves. Sex workers never formed a strong national organization, and feminist allies of sex workers saw their political capital weakened by the rapid decline of NAC and (later) the rise of Nordic model ideas, which became popular among feminists and



From Bad to Worse via a Successful Constitutional Challenge

271

other sectors. The notion of defining prostitution as inherently exploitative and criminalizing all customers regardless of intent or behavior remained contested. But as NAC weakened, for unrelated reasons, without any other national organization taking its place, there was no arena in which feminists could speak with one another and contemplate a compromise policy aimed at minimizing the harm being done to female sex workers by the laws. And in the absence of strong national voices, there was no reason for governments to act. Thus, matters stood for many years, until two well-­prepared constitutional challenges came to be mounted in the early years of the twenty-­first century, one in Toronto and one in Vancouver.

The Bedford Constitutional Challenge to the Laws: The Political Effects of Litigation Strategies and Practices The challenge that eventually reached the Supreme Court originated in Toronto and was conducted primarily by Alan Young, a law professor from Osgoode Hall Law School with experience in constitutional rights challenges to moralistic laws (legalizing medical marijuana was the major item on his curriculum vitae). Young had previously represented Teri-­Jean Bedford after she was charged with “keeping a common bawdy house” (that is, a brothel) in the 1990s.17 That defense effort proved unsuccessful, not surprisingly, as Young’s main argument was the claim that the bondage “dungeon” run by Bedford did not actually offer sex: “you can get sex much cheaper,” Bedford exclaimed at one point in the proceedings.18 The trial turned Bedford into a minor local celebrity, but she had little involvement with organized sex worker or feminist groups. Of the three plaintiffs, only Val Scott had a significant history of collective political work and leadership. When preparing his case, Young made an effort to reach out to the main Toronto sex worker advocacy group, Maggie’s, which prompted many internal discussions; but the very next day he sent Maggie’s a memo that outlined his strategy. Beyond that somewhat unilateral gesture, he appears to have made little effort to make his work accountable to either that organization or any of the other groups led by sex workers that existed across the country.

272

Mariana Valverde

Young’s heroic-­lawyer-­against-­Big-­Brother approach stood in sharp contrast to the situation in Vancouver. There, sex-­work issues had gained unique prominence in the 1990s, in large part as a result of a series of murders, most of them of street-­based sex workers, many of them Indigenous, murders that were only superficially investigated but turned out to be the work of a particularly nasty serial killer. However, even before the nationwide outcry about police disrespect for murdered sex workers that followed in the wake of charges being belatedly laid, Vancouver’s progressives were unusually well prepared for constitutional litigation through the work of a remarkable poverty-­law organization with the odd name of “PIVOT Legal Society,” which has long played a key role in improving conditions and minimizing legal risks for Vancouver’s marginalized people including its large drug-­user community. PIVOT had worked with street-­based workers to launch a constitutional challenge in the early 2000s. But the PIVOT-­led challenge was halted by a judge’s negative ruling on the question of standing (since the women in whose name the appeal was launched had not been recently convicted). If the Vancouver challenge had gone forward first, rather than the Toronto-­based one, it would have been accountable to the only semi-­ organized street-­based sex worker community in the country (by contrast, Toronto’s Maggie’s is led mainly by non–­street workers19). The Vancouver challenge would certainly have ensured that the agency of all sex workers, street-­based and not, featured prominently in the legal arguments—­whereas Young, in Toronto, though personally a libertarian and so opposed to the sex-­worker-­as-­essential-­ victim narrative, stuck to the more legally promising strategy of highlighting the additional harm to sex workers posed by the criminal laws.20 The fact that Young did not have any structure of accountability to anyone besides his formally identified three clients is significant. Local groups such as Maggie’s or Vancouver’s PIVOT, if allowed to have significant influence on the litigation strategy, would have insisted on emphasizing agency, dignity, and choice, but on feminist rather than civil libertarian grounds.21 As it was, PIVOT had to squeeze their feminist decriminalization arguments into an intervenor (amicus) brief, while the Toronto group, Maggie’s, was denied intervenor status.



From Bad to Worse via a Successful Constitutional Challenge

273

The Feminist Coalition versus the Women’s Coalition: Intervenor Politics, Competing Voices As just mentioned, the only parties in the Bedford litigation were the government of Canada on one side and the sex workers represented by Young on the other. Without further discussion of Young’s own litigation strategy, which had little or no institutional or discursive connection to Canadian feminist organizing, this section will cover the intervenor arena. And the first thing to note here is the notable absence of the national group with the most storied history of gender rights litigation and intervention, the Women’s Legal, Education and Action Fund (known as LEAF). LEAF had its heyday from the mid-­1980s to the mid-­1990s, when equality-­seeking legal reform groups funded by a federal “Court Challenges Program” litigated or sought intervenor status in existing litigation, in order to obtain authoritative interpretations of the equality rights newly enshrined in the 1982 Charter of Rights and Freedoms. (U.S. readers should note that Canadian law has no hierarchy of strict versus intermediate scrutiny; all equality rights including gender are on the same level.) The LEAF intervenor brief in the 1992 R v. Butler case, for example, which resulted in a Supreme Court decision that essentially rewrote the obscenity law under a new, “risk of harm” rationale, was very widely read and widely debated; subsequently Catherine MacKinnon claimed that the LEAF brief had greatly influenced the Supreme Court’s decision even though it was not directly cited.22 From the mid-­1990s onward, LEAF’s influence diminished a great deal, due to internal organizational factors and to broader judicial trends; and it had to radically downscale its activities after 2006, when the Court Challenges funding program was abolished. But nevertheless, LEAF continues to exist and to carry out its mandate of representing women’s interests in constitutional litigation. The fact that LEAF did not seek intervenor status in Bedford, either on its own or together with other groups, is thus significant: if LEAF had intervened, its position would have been respectfully received at all levels of litigation. And if LEAF had intervened alongside PIVOT and other, less visible feminist decriminalization groups, the Court decision may or may not have been different, perhaps, but the LEAF position would certainly have had significant impact on the subsequent public discussion about

274

Mariana Valverde

what might replace the now invalid laws. LEAF did not issue a statement explaining its decision to not intervene and did not respond to e-­mails I sent inquiring, but feminist lawyers one step removed from LEAF told me that LEAF did not seek to intervene because the issue of prostitution law reform was simply too divisive. The vacuum created by LEAF stepping back was first filled—­though belatedly, after rather than before the trial stage—­by a coalition of women’s groups that described itself as “abolitionist” (in the sense of believing that coercive law can be used to try to abolish prostitution altogether) and that supported the Nordic model, in which all purchases of sex, whether in public or in private, are criminalized. A Vancouver activist, Lee Lakeman, who had previously alienated many feminists around the country by attempting to exclude trans women from working in her organization, drew on her existing network of radical feminists to form the “Women’s Coalition,” as they called themselves. A key spokesperson for this coalition was Janine Benedet, a feminist law professor long known for her support of the Nordic model. A long list of groups, many very small, signed up for this coalition; but only a few had prior national visibility. One was the Canadian Association of Sexual Assault Centres—­though several important sexual assault centers broke with their national organization on this issue. Another important group was the Canadian Association of Elizabeth Fry Societies, whose longtime leader, Kim Pate, was and remains the country’s leading voice for incarcerated women, and who had previous to participating in this coalition enjoyed a good reputation with sex workers and with all progressives fighting against harsh criminal justice policies. Pate and her colleagues had long worked with the Native Women’s Association, a venerable aboriginal feminist organization with considerable political capital among both feminists and criminal law justice activists.23 Not surprisingly given these prior links, the Native Women’s Association, long a strong voice against overcriminalization, joined with Pate in the Women’s Coalition, despite the fact that the Coalition’s brief describes all sex workers as “prostituted women” (para. 9). The brief did not include the critiques of criminalization and the white patriarchal state that are the bread and butter of both of these organizations. Instead, the intervenor brief claims that sex workers’ voices may not be reliable because women may not know that they are being pimped (para. 16) and—­most out of sync with the general views



From Bad to Worse via a Successful Constitutional Challenge

275

of both of these organizations—­that it is not the state, through its laws, that harms women, but rather men (para. 38).24 The Women’s Coalition brief did not appear to have much effect on either the Ontario Court of Appeal decision or the Supreme Court judgment; but it did have the unintended effect of mobilizing feminists strongly opposed to the victimism of the brief and its apparent abandonment of the feminist critique of coercive state power that some of its leaders, especially Pate, had always articulated.25 The leader who quickly tried to pull together a competing coalition of feminists supporting sex workers’ dignity and agency was a Toronto feminist long known as “Jane Doe” (due to a long-­ago sexual assault case and subsequent lawsuit against the police that need not detain us here). They called themselves the “Feminist Coalition,” in an obvious move to challenge the claims implicit in the “Women’s Coalition.” An important feature of this hastily convened coalition (which did not obtain intervenor status at the Supreme Court level, not surprisingly, given the lateness and hastiness of their effort) was to enable feminist groups and organizations who dissented from the Women’s Coalition pro–­Nordic model view to publicly oppose a position that had been presented as feminist unanimity. In terms of legal content, the views expressed in their brief were very similar to those found in several other intervenor briefs, from PIVOT and from civil liberties groups and HIV/ AIDS groups (that is, criminal laws are dysfunctional and harm women; a harm-­reduction approach is preferable to coercion when managing the risks of sex work).26 But in relation to feminist politics, it made a difference that the pro–­Nordic model Women’s Coalition became unable to claim to represent Canadian feminism. Thus, neither coalition was particularly successful, in legal terms, but the maneuvers around the intervention process showed that in relation to the most important gender-­related law reform process in years, Canadian feminism was revealed for all to see as sharply divided. It became widely known that there were two competing coalitions of women’s groups seeking intervenor status—­and neither included LEAF, long the leader in feminist constitutional litigation. That combination of silence and division stands in sharp contrast to the united women’s voice that (for public purposes, at any rate) the NAC had produced for the benefit of the Fraser Committee in the 1980s. We will return to the lessons one might draw from this story of

276

Mariana Valverde

dueling feminist coalitions in the conclusion—­but for now it is necessary to briefly summarize the Supreme Court judgment and then go on to explain the new criminal law that was put in place in 2014 to replace the invalidated old laws.

The Supreme Court’s Pragmatist Approach to Sex-­Work Laws At the outset I briefly described the Supreme Court’s rationale for striking down the three main prostitution laws, namely, the principle that the state, through its laws and policies, ought not to cause additional harm or pose additional risks to already vulnerable groups. This “state harm” principle (which has roots in medical practice and public health) had earlier led the Court (as previously mentioned) to side with provincial health authorities funding a safe-­injection site in Vancouver, in defiance of federal drugs legislation. Now, in the Bedford case, if the Court had seen its role as proto-­ legislative (as it did in the 1992 obscenity decision in R v. Butler), it might have gone on to describe in positive terms the harm-­reduction, pragmatist approach to regulating sex work that one can see operating in certain jurisdictions, most notably New Zealand. The New Zealand model, which legalizes brothels that have four or more employees but leaves independent sex workers and small cooperatives unregulated and unlicensed, had been lauded by several of the plaintiffs’ expert witnesses (for example, Australian political scientist Barbara Sullivan), so the Supreme Court was well aware of its existence. Perhaps the Court did not see its role as recommending any particular replacement for the invalidated laws, so the judgment was brief and modest. And yet, the judgment, while not explicitly advocating a pragmatist, harm-­reduction, sensible regulation approach to sex work, models or performs a pragmatism that could be said to be typically Canadian. In a relatively short and unanimous decision, the Court steadfastly refuses to even ask whether sex work is inherently exploitative and, relatedly, avoids mentioning feminism. Eschewing all ontological and moral discourses, the Court’s stance is best seen in a passage in which the Court criticizes a government lawyer’s incautious claim that if sex workers encounter danger on the street, that is their



From Bad to Worse via a Successful Constitutional Challenge

277

own fault for choosing a risky profession. Against this view, the Court could have deployed the radical feminist discourse of sex workers as total victims lacking in agency—­but instead, the Court quietly de-­ genders prostitution law and reiterates the doctrine about the state’s duty to not cause harm, as follows: It must be remembered that prostitution—­t he exchange of money for sex—­is not illegal. The causal question is whether the impugned laws make this lawful activity more dangerous. An analogy could be drawn to a law preventing a cyclist from wearing a helmet. That the cyclist chose to ride her bike does not diminish the causal role of the law in making that activity riskier. The challenged laws relating to prostitution are no different.27

That the brothels law, the “living off the avails” (procuring) law, and the anti–­street soliciting law were all invalid because they prevented workers from taking elementary precautions to screen clients and ensure their own safety was the crux of the decision, substantively; but the way in which this was expressed, by means of a homey analogy featuring a nonsexual and de-­gendered counterfactual, did more than ridicule the government’s lawyers. The rhetorical strategy quietly shifted the debate away from the conflicting ontologies of gender and of money that have long haunted sex-­work law, toward classic Canadian policy pragmatism. In keeping with this pragmatism, the Court further reminded Canadians that striking down the law does not necessarily create a legal vacuum, as the legislature is by no means prevented from “imposing limits on where and how prostitution may be conducted. . . . The regulation of prostitution is a complex and delicate matter. It will be for Parliament, should it choose to do so, to devise a new approach” (para. 165). This understated call for a sensible regulatory system is, of course, not the total decriminalization sought by Young and by many sex workers. But it is worth contrasting the Court’s homey, pragmatist rhetoric with the way in which other participants, from the federal government to the feminists of the Women’s Coalition, made grand generalizations about the nature and moral status of sex work by speaking consistently not of sex workers but of “prostituted women.”

278

Mariana Valverde

The New Law: Party Politics Trump the Supreme Court’s Pragmatism Instead of heeding the Supreme Court’s gentle shove in the direction of the kind of middle-­of-­the-­road evidence-­based regulatory strategies that would flow from the bike-­helmet law approach, the Conservative government chose to take an absolutist approach. The 2015 law criminalizes every act of purchasing sex (in keeping with the Nordic model) but, quite out of keeping with the Nordic approach, adds a strong law-­a nd-­order overlay by also criminalizing all advertising for the rather broad category of “sexual services” (which arguably includes much more than prostitution). Advertising sexual services on the Internet was not banned in the original Swedish law (indeed, such advertising is implicitly encouraged, since brothels are not legal). The Canadian Conservative government also chose to re-­criminalize women themselves in certain circumstances (soliciting near a park or playground), a move in complete contradiction with the Nordic (and radical feminist) narrative of sex workers as victims. Neither the clause re-­criminalizing street-­based women nor the anti-­ advertising provision became well known, however (and remain unknown to most as of this writing28). The information disseminated about the new law was limited almost completely to that first clause, which criminalizes all purchases of sex, often surrounded by press release comments paraphrasing the bill’s preamble—­which cherry-­pick the radical feminist idea that prostitution is exploitative but bury it in a moralistic de-­gendered Christian discourse about the evils of purchasing “sexual services.” A question that many including the present writer pondered was this: Why did the government spend political capital drawing up a new law that was a marked departure from the status quo on the one hand but also, on the other hand, paid no heed to the Supreme Court’s quiet but firm nudge toward pragmatic regulation? Or why did the government not do the normal thing (currently being done by the governing Liberals), namely, kick the can down the road? The Court, when releasing the Bedford decision, gave the government a year to write a new law. An election was looming, and the government could easily have kicked the can down the road by asking for an extension that would



From Bad to Worse via a Successful Constitutional Challenge

279

continue until Parliament recessed for the election campaign. Both the law itself and the scant, mainly word-­of-­mouth information about the process that is available suggest that the government’s main aim in introducing what was bound to be a controversial law was not to cater to the pro-­criminalization feminists represented by the Women’s Coalition (a group that was unlikely to vote Conservative on other grounds) but rather to reactivate the moral conservatives, in Parliament and out of it, who for years had been displeased that neither abortion nor same-­ sex marriage had been revisited even years after the Conservatives, led by Prime Minister Stephen Harper, achieved an absolute majority, in 2011. A point that differentiates the Canadian Conservative party from the otherwise not dissimilar Republicans of the United States is that, despite being a far-­right government known for ditching the Canadian tradition of evidence-­based criminal justice policy,29 the Harper government had successfully prevented their morally conservative backbench members of Parliament, over the years, from trying to reverse same-­sex marriage or to resurrect a criminal law on abortion. The prostitution issue clearly presented a far safer outlet than abortion for the pent-­up moralism of the government backbench, given Canadian polling data. Thus, parliamentary hearings, from which feminists of all stripes were excluded, were largely turned over to evangelical churches and “rescue” organizations who cared about prostitution and saw it in the now popular terms of the international anti-­t rafficking movement. The law, described by a government source (not incorrectly) as a “paradigm shift,”30 therefore had as its primary audience the Conservative’s party moralistic backbench and solid voting base—­as shown by the hearings in both houses of Parliament, which were unusually stacked and showed unusual rudeness to dissenting witnesses.31 The right-­wing moralists whose support the Harper government needed to survive were not the only audience, however. As in other countries, “anti-­t rafficking” had by 2014 become a cause for many Canadian mainstream as well as feminist groups and organizations, and the Protection of Communities and Exploited Persons Act catered to these (which otherwise are well outside of the Conservative tent)—­a lthough the text that comes closest to representing the Women’s Coalition type of feminism is not found in any of the law’s working clauses, but rather in the preliminary “whereas” clauses:

280

Mariana Valverde

Whereas the Parliament of Canada has grave concerns about the exploitation that is inherent in prostitution and the risks of violence posed to those who engage in it; Whereas the Parliament of Canada recognizes the social harm caused by the objectification of the human body and the commodification of sexual activity.32

“Objectification of the human body” and “commodification of sexual activity” are phrases that link anti-­pornography feminists with religious conservatives; but, importantly, they do so by sweeping gender power under the rug. What was the feminist response to the law? Some feminists, inside and outside Canada, felt that they had some of their wishes granted: if one went by the government press releases, one might have thought that all male customers but no women workers were now to be criminalized. But ambivalence quickly surfaced, not surprisingly, once people actually read the law. Thus, noted “abolitionist” feminist Kathleen Barry responded to the new law by noting that “The press release [about the new law] from Canadian MPs [Members of Parliament] has twisted a new, very regressive law to look like a gain for women. Please note moderators of this [e-­mail] list that this is not a political argument, it is a correction to the misleading press release which announces the law as a feminist gain.”33 However, perhaps due to a reluctance to face “I told you so” reactions from decriminalization feminists such as myself, in response to an inquiry I made about that women’s studies e-­ mail list comment Barry explained to me, in February 2015, that overall the law is still a gain for feminism, even though it is out of keeping with the Nordic model because under some circumstances street-­based workers are re-­criminalized. A similar reluctance to openly criticize the new law was found among Canadian feminists who had shared Barry’s views and who remained largely silent after the law’s passing. The Native Women’s Association (NWA), a very significant feminist organization that as mentioned earlier had supported criminalizing customers during the litigation, was notoriously silent. Buried under several layers of hyperlinks, one can find, through the NWA website, a June 2014 press release by a pro-­criminalization feminist coalition that gives very lukewarm support to the new law, entitled “New Law Begins to Recognize the Harm in Prostitution.” That press release quotes an NWA



From Bad to Worse via a Successful Constitutional Challenge

281

spokesperson; but the NWA’s own press releases and documents fail to mention the new law. Similarly, the Canadian Association of Elizabeth Fry Societies, which under Kim Pate’s leadership had taken a lead role in the Women’s Coalition, have remained silent since the law’s passing, with their 2015 annual report making no mention of it and their 2013–­14 annual report mentioning only their own intervention in the Bedford litigation, not the introduction of the law. For their part, numerous women’s groups and sex worker groups, not to mention many of the country’s criminal law professors, expressed their criticism of the new law in vocal terms, much along the lines of the failed Feminist Coalition.34 The national feminist groups that had initially supported the Women‘s Coalition, by contrast, went silent after the bill became law. The silence on the part of the Women’s Coalition members probably contributed significantly to the fact that the prostitution law did not become an issue in the election campaign that in October of 2015 led to the defeat of Prime Minister Stephen Harper’s government by the Liberal party, led by Justin Trudeau (son of Pierre Trudeau, who in 1969 liberalized the Criminal Code’s provisions on birth control, abortion, and homosexuality). The new minister of justice and attorney general of Canada is a young female Indigenous leader from British Columbia who undoubtedly has her own views on sex-­work laws, given the prominence of prostitution and violence against sex workers in the Vancouver area; but the new government’s plans for sex-­work law reform remain a mystery. Other issues are more legally pressing, from rolling back the Harper government’s mandatory minimums and restriction of parole and probation to legalizing assisted suicide and recreational marijuana. The fact that sex-­work law reform is not viewed as a pressing item on the government’s agenda can be seen as both a symptom and a cause of the feminist fragmentation and feminist silences that were visible in the dueling feminist coalitions of the Bedford litigation.

Conclusion No matter what happens to Canada’s prostitution law in future months or years, the history outlined here suggests some conclusion. First, one sees that when feminists and other progressive forces focus their

282

Mariana Valverde

energies on constitutional rights victories in the courts, neglecting the legislative process, they may be suddenly marginalized by new laws that are difficult to change. Second, in the face of a women’s movement that is divided and unable to project a strong national voice, clever anti-­feminist politicians can easily cherry-­pick a few feminist ideas to give law-­and-­order measures a new lease on life—­a move that is not Governance Feminism but is arguably governing through or by means of feminism. Finally, and most important, in the absence of a recognized national organization of sex workers, it is nearly impossible for sex workers’ interests to be adequately represented. It is not at all coincidental that during the process that led to the 2003 New Zealand Prostitution Law Reform Act, a national sex worker organization was a key protagonist in the legal reform process.35 If such a national voice does not exist, a strong national women‘s organization that avoids victimism and advocates for sex workers, or at least advocates for the elimination of laws that harm them, could be a temporary substitute, as NAC was in Canada in the 1980s for purposes of the Fraser Committee; but that kind of feminist organizing is only a poor substitute for sex worker activism. In the long run, Canadian feminists of all stripes will have to think about how to create a national arena to publicize, prevent, and denounce anti-­women statutes and policies. That sex workers and other marginalized and stigmatized women need to be central actors in such a reconstituted national feminist movement or coalition, if sex-­work law is going to be taken up, is a key principle, borne out by the successful New Zealand experience. As it stands, what this chapter has documented is the ultimate failure of all forms of Canadian feminism to wield significant influence on the hugely important field of sex work law—­so far.

Notes Many people made significant contributions to this chapter. Emily van der Meulen, Kyle Kirkup, Tony Doob, and Hamish Stewart generously shared their knowledge, while Amy Cohen, Prabha Kotiswaran, and Sonia Lawrence gave invaluable comments. 1. My first book, Sex, Power, and Pleasure (Toronto: Women’s Press, 1985), was commissioned by a feminist press to ensure that the “sex debates” then taking place in the United States had at least one significant Canadian book-­length contribution.



From Bad to Worse via a Successful Constitutional Challenge

283

In keeping with the tenor of the “sex debates” of the time, sex work is not discussed in the book. For a more academic contribution, see Mariana Valverde, “Beyond Gender Dangers and Private Pleasures: Theory and Ethics in the Sex Debates,” Feminist Studies 15, no. 11 (1989): 237–­54. In regard to recent political activity, during 2011–­13 I was one of two academics invited to join a sex worker–­led group, the Sex Work Policy Group. I am deeply thankful to Val Scott and the other group leaders for accepting me into their group and sharing their wisdom. 2. While other areas within the sex-­a nd-­t he-­law field have experienced harmonization across countries and even continents (e.g., same-­sex marriage), sex-­ work policy has seen widely diverging laws and policies emerge in otherwise similar countries. See Mariana Valverde, “The Regulation of Sex and Sexuality through Criminal Law,” in The Oxford Handbook of Gender, Sex, and Crime, ed. Rosemary Gartner and Bill McCarthy (Oxford: Oxford University Press, 2014), 230–­50. 3. Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101. 4. Research shows that criminalizing all customers, along the lines of the Swedish 1999 law adapted for use in many jurisdictions, exposes women workers to additional danger. Although the Swedish government has produced almost entirely propaganda about its innovative law, not independent evaluations, even its evidence shows cause for concern. See, e.g., the careful analysis of the Swedish law in a Norwegian Ministry of Justice and Police 2004 report, Purchasing Sexual Services in Sweden and in the Netherlands. 5. England and Scotland are adopting features of the Nordic model, though in a fragmented manner rather than through a general new law; see Jane Scoular, The Subject of Prostitution (London: Routledge, 2015). 6. See note 5 above, and Jane Scoular, “Criminalising Punters: Evaluating the Swedish Position on Prostitution,” Journal of Social Welfare and Family Law 26 (2004): 195–­210; Barbara Sullivan, “When (Some) Prostitution Is Legal: The Impact of Law Reform on Sex Work in Australia,” Journal of Law and Society 37 (2010): 12–­39. 7. Andrea Sterling documented the negative effects of the new law (or perceptions of the new law) among independent escorts for an unpublished master’s paper at the Centre for Criminology and Sociolegal Studies, University of Toronto (2015); she and I are currently conducting additional research on how the new law is being interpreted by independent escorts and those who help them carry on their business, such as website administrators. 8. The Conservative government claimed public opinion support for their move to criminalize all purchases of sex; to do so they suppressed the results of their own opinion polls, which showed Canadians were split more or less down the middle on whether to criminalize purchases of sex in the wake of the Court’s decision. Alex Boutillier and Tonda McCharles, “Secret Poll Shows Canadians Deeply Divided on Prostitution Approach,” Toronto Star, July 16, 2014. 9. Wanyee Li, “Vancouver Police to Prioritize Safety over Anti-­Prostitution Laws,” Globe and Mail, December 5, 2014. 10. On this, see Deborah Brock, Making Work, Making Trouble (Toronto: University of Toronto Press, 1990), chapter 4.

284

Mariana Valverde

11. See Canada Department of Justice, Pornography and Prostitution in Canada: Report of the Special Committee on Pornography and Prostitution, vol. 2 (Ottawa: Government of Canada, 1985) (hereafter cited as Fraser Report). 12. Fraser Report, 2:520–­21. 13. The Canadian Broadcasting Corporation has a voluminous digital archive that can be searched for iterations of this famous phrase; see https://www.cbc.ca​ /ar​chives. 14. Fraser Report, 2:529. 15. Justice Minister Mark MacGuigan told the national newspaper of record, at the time the Fraser Committee was set up, that the federal government was interested in developing some “model municipal bylaws” to help cities like Vancouver and Toronto. See Jeff Sallot, “Criminal Code Amendments: Prostitutes’ Clients May Be Charged,” Globe and Mail, June 24, 1983, 1. 16. For more on this, see Brock, Making Work, chapter 6. 17. The decision in that case was R v. Bedford [1998], O.J. 4033. 18. Trial transcript cited in Mariana Valverde, Law’s Dream of a Common Knowledge (Princeton, N.J.: Princeton University Press, 2003), 74–­77. 19. In an article available on the PIVOT website, dated April 5, 2013, the writer complains that the litigants in Bedford did not represent street-­based sex workers. See “Sex Work Groups from the DTES [Vancouver’s Downtown East Side] Ready to Intervene at SCC,” http://www.pivotlegal.org/sex_work_groups_from_the_dtes​ _ready_to_intervene_at_scc (accessed February 15, 2015). 20. What PIVOT’s argument would have been was explained by their legal director, Katrina Pacey, in a panel discussion that I co-­organized at the University of Toronto, on January 28, 2014. Law professor Brenda Cossman, speaking in the same panel, also criticized the way in which the Bedford challenge had concentrated on dangers to women, a strategy that in her view would tend to evoke a paternalistic state response, even if that response was not what was sought by the Bedford litigants. 21. In the early 1980s, I was a member of the collective that published the Body Politic, a gay liberation newspaper that was criminally charged under a quasi-­ obscenity statute. In that situation, the men whose name figured on the indictment resolved to pass the responsibility for instructing their lawyer to a representative community group (the Body Politic Defense Committee). As I recall, the lawyers involved were not happy with this but eventually accepted it. I am not aware of other Canadian constitutional challenges to criminal laws in which the accused have given up control of the case in this manner. In the most famous of these, the Morgentaler abortion case (or rather cases), Dr. Morgentaler chose and instructed his own counsel, though he and his counsel did work closely with the Ontario Coalition for Abortion Clinics. 22. On the “risk of harm” test developed by the Supreme Court in Butler and its relationship to feminism, see Mariana Valverde, “The Harms of Sex and the Risks of Breasts: Obscenity and Indecency in Canadian Law,” Social and Legal Studies 8, no. 2 (1999): 181–­97. 23. In recent years, as is the case in Australia, aboriginal issues have become central to Canadian politics, including feminist circles. This is particularly true for



From Bad to Worse via a Successful Constitutional Challenge

285

criminal justice issues. The overpolicing and overincarceration of black Canadians, by contrast, is generally seen as a city-­based issue more than as a national issue. 24. Factum of the intervenor Women’s Coalition, Court of Appeal for Ontario file C52799 and C52814. 25. The organizers of the public forum on the Supreme Court Bedford decision held at the University of Toronto had to contend with a protest, from sex workers, directed at Kim Pate, one of the speakers. They, and their feminist allies, expressed dismay and surprise that Pate would appear to be supporting the Nordic model. A well-­known aboriginal woman lawyer spoke at that same panel in favor of decriminalization, in contrast to the position officially held by the Native Women’s Association. 26. “Affidavit of Jane Doe,” Supreme Court of Canada file 34788, in possession of the author. 27. Canada (Attorney General) v. Bedford, 2013 SCC 72, para. 87. 28. One informant explained to me (in the fall of 2015) that advertising charges are sometimes “tacked on” to charges under the trafficking law, which was not affected by the Bedford challenge. 29. See Michael Harris, Party of One: Stephen Harper and Canada’s Radical Makeover (Toronto: Viking, 2014); and Cheryl Webster and Anthony Doob, “US Punitivism Canadian Style,” Punishment and Society 17, no. 3 (2015): 299–­321.  30. Government of Canada, Department of Justice, Technical Paper on Bill C-­36 (The Protection of Communities and Exploited Persons Act), December 2014, http:// www.justice.gc.ca/Eng/Rp-Pr/Other-Autre/Protect/P1.Html. This so-­called technical paper is not only ideological but also incorrect: among other things it goes as far as to claim that the law makes lap-­dancing a crime. Ottawa insiders point out that a real Department of Justice policy paper would have an author and would specify the author’s branch of the department—­t his suggests that the “technical” paper actually came from the Prime Minister’s Office. A more reliable and neutral account of the litigation and of the old and new laws is found in the Library of Parliament’s Legislative Summary of Bill C-­36, dated July 18, 2014, and available through https://lop​ .parl.ca/sites/PublicWebsite/default/enCA/ResearchPublications/LegislativeSum​ maries​/412C36E?. 31. Teri-­Jean Bedford, one of the three plaintiffs in Bedford, was bodily ejected from Parliament when she showed up, complete with dominatrix whip, to express her anger at the new law. 32. The preamble continues as follows: “Whereas it is important to protect human dignity and the equality of all Canadians by discouraging prostitution, which has a disproportionate effect on women and children; whereas it is important to denounce and prohibit the purchase of sexual services because it creates a demand for prostitution” (Protection of Communities and Exploited Persons Act, S.C. 2014, c 25; emphasis added). 33. Comment posted June 2014 to the academic Women’s Studies list WMST-­L . Thanks to Emily van der Meulen for bringing this to my attention. 34. See open letter signed by 190 lawyers and law professors dated December 17, 2014, in possession of the author. 35. For the process leading to the New Zealand law, see Gillian Abel, Lisa Fitzgerald, and Catherine Healey, eds., Taking the Crime out of Sex Work: New

286

Mariana Valverde

Zealand Sex Workers’ Fight for Decriminalization (Bristol, U.K.: Policy Press, 2010); and see 2008 five-­year evaluation of the 2003 law, available through the website of the New Zealand department of Justice website, http://prostitutescol lective.net/wp-content/uploads/2016/10/report-of-the-nz-prostitution-law -committee-2008.pdf.

C H A P T E R 12

“You Play, You Pay” Feminists and Child Support Enforcement in the United States LIBBY ADLER AND JANET HALLEY

Albert Tecci, a native of Boston’s North End, goes down in history as one of Massachusetts’s most notorious “deadbeat dads.” In 1986, he divorced his first wife, Joan, and moved out of state. He neglected to pay child support, leaving her and their two sons in Massachusetts to survive on public assistance. Tecci and the woman who would become his second wife, Cheryl Penny, won $7.1 million in the Colorado Lotto in 1989, and still no payments arrived. A fugitive arrest warrant issued; Massachusetts named Tecci one of its “Ten Most Wanted” child support debtors; and in 1993, Tecci was finally extradited to Massachusetts from Las Vegas, jailed, and tried for failing to pay $32,000 in past-­due child support. Tecci claimed to be broke by 1992 after selling the rights to his winnings to an insurance company and squandering the cash on extravagant spending, gambling, and cocaine. It was true; he even got himself arrested for shoplifting hot dogs from a Vegas market.  The district court in Chelsea, Massachusetts, was not impressed, however, and sentenced Tecci to eighteen months in jail. The case was eventually settled when the insurance company that purchased Tecci’s lottery rights (in violation of Colorado law) agreed to pay $1,500 per month to Joan until the Tecci children reached the age of twenty-­three. The commissioner of the Massachusetts child support agency, Mitchell Adams, rejoiced, saying, “We rarely get a resolution of a child support enforcement case that is as complete and perfect as this one.” Adams added, “He lucked out greatly when he won the lottery.” Lucked out, indeed. 287

288

Libby Adler and Janet Halley

Walter Scott of South Carolina was not so lucky. On the morning of April 4, 2015, the fifty-­year-­old black man was pulled over in North Charleston by a white police officer named Michael T. Slager for driving with a broken taillight. Scott fled on foot and ran into an empty lot. Slager shot him eight times in the back, killing him. According to Slager, Scott had wrested away his Taser. Slager reported fearing for his own life. Three days later, however, Feidin Santana, a young Dominican man who regularly walked past the lot on his way to the barbershop where he worked, turned over to Scott’s family a video of the shooting. Santana witnessed the incident from the other side of the fence that enclosed the lot and had surreptitiously recorded Scott running away as an obviously unthreatened Slager fired bullets into Scott’s back. The family gave the video to the New York Times, and soon everyone knew that Slager’s account had been fabricated. Another catastrophe involving the death of an unarmed black man at the hands of police would reignite the grief and protest that followed the deaths of Eric Garner, Michael Brown, and too many others. What set the course from a broken taillight to this tragedy for yet another black family? Why did Scott run from a simple traffic stop? We cannot know for certain. Scott’s brother, however, had a theory, and the Scott family attorney felt confident enough to share that theory with the New York Times. Scott owed $18,000 in past-­due child support. He had been arrested on nearly ten prior occasions in connection with his child support debt. He would not, he had told his brother, go to jail for child support delinquency again. While sympathy for Tecci may be in short supply, Scott’s story points to serious concerns that are now on the social-­justice front burner. Critiques of the neoliberal, carceral state are gathering in volume, depth, and force. Thorough analyses of the war on drugs, the overuse of prisons as well as immigration detention, the privatization of same, the erosion of the social safety net, the defunding of public education, the decay of infrastructure, and wage stagnation at a time of stock market records now abound. The American child support enforcement system, however, which has quietly grown over the last four decades from a feeble and disconnected array of judicial orders into a nationalized, computerized, and (at least for wage earners) nearly seamless collection apparatus, has not been sufficiently examined for its role in the larger portrait that has emerged. Child support is a nexus



“You Play, You Pay”

289

that joins together the rise of so-­called personal responsibility, the erosion of public support systems, the moral discourse of family values, the overuse of the criminal justice system, and—­as the Walter Scott tragedy evidences—­the scourge of police violence. In this chapter we explore the role of feminists in constructing this system for collecting child support. Our thesis is that feminists interested in child support policy, driven by legitimate and, indeed, important concerns about women and children’s poverty and by justified indignation about paternal shirking, were able to influence policy only by hitching a ride on strong conservative and, later, neoliberal trends favoring privatized support obligations, family-­values moralism, contraction of the welfare state, pervasive surveillance, and punishment. The result is, we submit, a case study in the ethical choices facing feminists with a law-­reform agenda: when do the inevitable collaborations and compromises that go with gaining and keeping a seat at the table entangle us in responsibility for harmful social policy?

The Child Support Enforcement System In 1996, President Bill Clinton signed the Personal Responsibility and Work Opportunity Reconciliation Act, or PRWORA, a massive federal welfare reform package the animating principle of which is expressed in its title: personal responsibility.1 Republican congressional proponents and the New Democratic president held the stated objective of reducing dependency on public assistance and encouraging self-­ reliance in the form of employment or, as President Clinton liked to say, “ending welfare as we know it.” They pursued their objective by, among other means, the addition of work requirements, the imposition of a five-­year lifetime limit on welfare recipiency, the establishment of “family caps” that limited the size of welfare grants without regard to increases in family size, and the conversion of a federally subsidized mandate on states to give aid to the poor into block grants accompanied by immense state discretion on how to use federal funds.2 Among PRWORA’s numerous reforms were improvements to the system for enforcing child support. In fact, in the modern history of child support enforcement, the system has been periodically upgraded, each time strengthening and streamlining enforcement. Though there remain steps in the process that are controlled by bureaucrats and

290

Libby Adler and Janet Halley

judges, enforcement of an established child support order against a parent working in the formal economy is extremely difficult to evade, reaching into assets and imposing penalties with a minimum of process constraints. Here is how the system works. The federal government offers block grants to states, and if they accept them—­a ll do—­t hey have wide discretion about how to offer monetary and other aid to the poor. Federally imposed restrictions bar states from retreating to a robust welfare system but leave states discretion to further cut back on transfers to the poor. But on child support, states face a dense battery of federal requirements. Each state must establish a IV-­D agency (named for the section of the Social Security Amendments of 1974 that gave birth to this bureaucracy) to manage child support enforcement. This agency must collect W-­4s, with social security numbers, and upload job data to a national new-­hire registry. They must register all child support orders to a second national registry. These computerized registries are then collated to identify the child support obligations of every worker with a W-­4. Bank account and other financial assets are also matched with the child support registry. The Internal Revenue Service (IRS) and other agencies are required to provide names and addresses to a federal Parent Locator Service that attempts to identify the residence of as many obligors as it can. States must enact income-­based guidelines setting the level of child support in every case that comes to their courts: deviating from these guidelines requires justification. Wage withholding begins immediately and automatically in the vast majority of cases. The child support order cannot be retroactively modified, and fathers (we will speak of fathers because they are vastly the predominant obligors) must go to court to obtain modifications if they fall on hard times. If they fail to achieve this before the next monthly payment, they are in arrears and—­depending on the amount of the arrearage—­a number of harsh consequences can follow. Automatic administrative liens can be placed on their real and personal property; their state and federal tax refunds may be intercepted; credit reporting agencies may be notified of their debt; their professional and driver’s licenses can be suspended or revoked; they can be denied passports or have their passports restricted; and they are ineligible for public assistance of any kind. Child support arrearages cannot be discharged in bankruptcy.



“You Play, You Pay”

291

Meanwhile, the IV-­D agency requires mothers of nonmarital children to identify the fathers of children for whom they seek public assistance and runs a voluntary paternity identification program in maternity wards. Men can voluntarily acknowledge paternity, but if they do not, and they are identified in accordance with a low judicial standard, they, along with the mom and child, must undergo genetic tests, which come with fees for the fathers. Some states house their IV-­D agencies in their equivalent of the IRS, not in their child welfare departments. Custodial parents are required to assign their child support income up to the amount of their public assistance grant to the state; fathers with children on public assistance reimburse the state for those expenditures rather than paying support to the mom. Only if the public assistance grant is smaller than the child support payments actually received does the mom get anything from the father. Two exceptions apply. First, about half the states employ what is called a “pass-­through and disregard”—­that is, a state may “pass through” a portion of the child support collected—­say $50–­$200 (typically the low end of that range)—­in order to incentivize the mom’s cooperation with child support enforcement efforts, and “disregard” that portion of the family’s income for purposes of calculating the welfare grant. This practice was mandated before PRWORA but now occurs at the state’s option. Second, arrearages both accrued and collected after a family goes off public assistance were shifted from state revenue to mothers under a “family first” policy that was adopted as part of PRWORA. The IV-­D agency also must provide its enforcement services to any custodial parent who seeks to obtain a child support order and collect child support, even when the parent is not receiving public assistance. Congress requires states to impose a fee of $25 on these users. Arrearages can result in referral to law enforcement, and fathers can be subjected to civil contempt and jailed or convicted of evading child support and punished by incarceration. Failure to pay support for a child living in a different state and crossing state lines to avoid child support are federal crimes if the debt is more than a year past due or over $5,000. Fathers cannot get relief from past-­due payments even if they can show that they are in arrears because they have been unable to earn the amount upon which their child support order was based—­or earn anything at all. The moment a payment is overdue, it becomes a

292

Libby Adler and Janet Halley

judgment by operation of law, which means that it instantly becomes enforceable without allowing the obligor to challenge the underlying debt. The debt remains and he who owes that debt can go to jail—­a modern debtor’s prison.3 States also must cooperate with the federal government and each other. They must adopt, without changes, the Uniform Interstate Family Support Act (UIFSA), giving the state where the child resides exclusive authority to establish, enforce, and modify child support orders; the other states must cede jurisdiction and give full faith and credit to that state’s court’s output. States must adopt long-­arm statutes allowing for personal jurisdiction over fathers absent across state lines, which means that obligors must submit to jurisdiction in the primary court and pay the full requested amount if they default. This court is in the jurisdiction where the custodial parent and the child live. Drivers’ licenses must be interoperable for identity-­tracking purposes in all states. This is an extraordinary piece of legal machinery and a highly complex intergovernmental project. It involves data surveillance of the entire working and much of the parenting population. It moves private assets around automatically. Once a child support order is entered, its enforcement requires little due process. Computers do a lot of it. The system applies its rigors to poor women whether they want them or not. It pays no attention to fathers’ rights to visitation, in-­k ind support, kin support, or emotional support: emotional and relationship issues are entirely outside the scope of the system’s attention. The program is seriously carceral for the most chronic non-­paying fathers, including those who can pay but refuse to, those who have voluntarily rendered themselves unable to pay, and even those who truly cannot pay. Courts must inquire into obligors’ ability to pay in establishing a child support order, but a complex web of rules allow some low-­and no-­income fathers to owe more than they can pay. Fathers in prison are not exempt; fathers with no income face statutory minimum obligations nevertheless; and poor fathers who cannot persuade the judge of their justified indigence will be assigned obligations and expected to find paid employment sufficient to meet them. In contempt proceedings for failure to pay, the obligor bears the burden of persuasion if he wants to assert an inability to pay. Indigent obligors enjoy a right to counsel only when faced with actual criminal charges.



“You Play, You Pay”

293

Everyone must work in the formal economy or go off road: fathers because of the scourge of sanctions, and mothers because of rules housed in PRWORA. Forcing the poor into employment has fed labor supply for jobs at the bottom of the pay scale, and those workers are not as free to quit as coworkers unconstrained by child support and welfare rules. They remain a structural element of American income inequality. This means that the system both prohibits and helps to create a largely criminal underclass. Flight from child support can be into fancy business contraptions and offshore investments for those who can afford lawyers and accountants, but for those who cannot, it is into the informal economy. This involves everything from kinship networks sharing child care, to performing legitimate services “under the table” on a cash-­only basis, to drug dealing and other underworld activities. Child support is just one of the many micro-­regulatory systems that poor communities both rely on and hide from.

Governance Feminists Involved in the Construction of the System Four main types of feminists played important roles in the construction of the child support enforcement system. The degree to which each type would likely agree to be characterized as feminist or governors varies, but all of them brought feminist norms into the state. Feminist advocates were represented in the construction of the child support enforcement system in Washington, D.C., between 1973 and 1996 primarily by the National Women’s Law Center (NWLC), the National Organization for Women’s Legal Defense and Education Fund (NOW) (now known as Legal Momentum), and the Women’s Legal Defense Fund (now the National Partnership for Women and Families). Initially their role was to pressure government from the outside, but congressional committee chairs, Health and Human Services (HHS) administrators, and White House policymakers effectively recruited them to lead a coalition of “women’s groups.” Second, mothers who may or may not have understood themselves to be feminist organized to influence policy. These women had personal experience of the near impossibility of prying child support from an

294

Libby Adler and Janet Halley

unwilling father under the old system. They organized child support–­ specific groups and agitated for change in the law. They presented themselves as advocating on behalf of their children, but their own suffering at the hands of “deadbeat” men was constantly a focal point of their advocacy. Most of these groups were ephemeral, but the (now defunct) Association for Children for Enforcement of Child Support (ACES), founded in 1984 by Geraldine Jensen, managed to become the premier voice for the “grassroots.” Third, some highly influential women might not publicly identify as feminists but would surely acknowledge that they were governors. Child support program administrators organized themselves into professional groups, and many of them were women whose private politics likely were feminist. Governing was what they did for a living. They primarily advocated for their bureaucracies but purported to speak for custodial mothers and children neglected by deadbeat dads. They rapidly evolved not into advocacy groups but into experts, effacing any specifically feminist profile. Finally, there was the Congressional Women’s Caucus, a bipartisan group of women members of the House (with strong alliances with women senators) formed in 1977 at the beginning of the concerted feminist effort to get women elected into government. The Caucus advocates issues affecting women, children, and families that can garner bipartisan support.

Congressional Reforms of Child Support Enforcement Major legislative reforms of child support enforcement were passed in 1974, 1984, and 1996. Over those twenty-­plus years, the ideological valence of child support morphed several times, as did the ideological posture of the participant groups and political forces at play. We are particularly focused here on the degree to which feminists stayed loyal to a social-­welfare model of support for the poor, versus the degree to which they harmonized their message to the neoliberal, market-­based, and carceral poverty program that child support enforcement eventually became. By “social-­welfare model,” we mean poverty programs that prominently feature tax-­and-­transfer distributions, whether universal or means-­tested, intended to meet some or all dependency needs of recipients. By “neoliberal model,” we mean poverty programs that



“You Play, You Pay”

295

rely first on individual responsibility for self-­and family support, that focus not on needs but on incentives, and that build criminal enforcement into the system. As we will see, feminists campaigned to include non-­AFDC families in the IV-­D enforcement system and succeeded. This meant that feminists had to straddle loyalty to two groups of mothers: poor and nonpoor. We can trace their loyalty to a social-­welfare model whenever they faced the possible convergence or divergence of the interests of these groups of women. We will pay attention as well to the extent to which advocates embraced the surveil-­and-­punish design of the system as an index of their carcerality. Finally, we ask: when did they express concern for men too poor to pay, and when were they content to tolerate the near eclipse of voices advocating for poor men and the adoption of harsh social-­control measures?

1974 We take 1974 as the starting point for our story. Senator Russell Long (D-­La.), the “father of child support,” convened hearings of the Senate Finance Committee to address a crisis that he and the Nixon administration perceived in identical terms: ballooning Aid to Families with Dependent Children (AFDC) rolls and expenditures caused in part by absent fathers shirking responsibilities. In these early days, legislative interest in child support was entirely about distress in the public fisc. It was in this bipartisan crucible that the basic template of the child support system was forged: states had to establish IV-­D agencies; mothers on welfare had to assign their child support expectations to the agency; a federal Parent Locator Service was formed to track the whereabouts of absent fathers; and states had to authorize courts to order wage assignment and to enforce payment through criminalization. In general, feminist advocates opposed this very framing: they argued that the goal should be to strengthen families and to prevent family dissolution by addressing the underlying causes of poverty. At the time, a huge demographic shift was taking place among middle-­class women: with the rise of no-­fault divorce, many homemaker mothers lost their breadwinner and turned to a child support system that required individual court action, involved vast judicial discretion, and underestimated the costs of raising children. These women faced discrimination in the workforce as well; meanwhile fathers—­who enjoyed

296

Libby Adler and Janet Halley

a labor-­market advantage—­could evade child support orders simply by moving to a new state. NOW argued on behalf of these women that child support ought to be federalized. Its justice claim sounded in liberal individualist responsibility: the imagined constituents were hardworking middle-­class women being pushed onto welfare by shirking fathers; child support was a poverty prevention initiative. Leftist feminists at this early stage, however, actually opposed child support enforcement on the grounds that it would break down kin networks in poor communities. Ethnographer Carol Stack testified before Congress about her study of poor, black, urban families, arguing that pursuing fathers for support would deprive mothers and children of their informal and psychological support and that of their kin.4 The first phase of federal child support reform thus discloses feminists arrayed from the center-­left liberals focused on nondiscrimination to a position close to community-­based poverty advocacy.

1984 Jocelyn Elise Crowley depicts a historic mobilization of women between 1975 and the next big federal legislative moment in 1984.5 Women were slowly gaining seats in state legislatures as well as the Congress. Women Democrats and Republicans alike (notably, Barbara Kennelly [D-­Conn.], Patricia Schroeder [D-­Colo.], and Marge Roukema [R-N.J.]) decided that they had to assert some policy initiative regarding issues affecting women and families or no one would. All had heard heartbreaking stories from their constituents about the failure of states to enforce child support orders against delinquent ex-­ husbands and women’s heroic efforts to support their families without turning to public assistance. The 1984 reforms represent a new phase of feminist involvement in legislative drafting. Feminist advocates sought expanded wage withholding as well as the provision of enforcement services to non-­AFDC families. They shamed policymakers who focused on AFDC cases for caring only about recoupment of AFDC funds and not about the well-­being of families. Senator Long reflected on the changed political dynamic: “It’s fun now to support that program, because now the women’s movement has gotten behind it—­bless them all—­a nd so now we have a lot of support for it. It is now becoming a popular program.” 6



“You Play, You Pay”

297

The climate for social-welfare arguments, however, had worsened noticeably by 1983–­84. At the very moment of their inclusion, feminists faced a newly conservative, incipiently neoliberal context of operation. The “war on poverty” was coming under attack. In 1984, Charles Murray’s bombshell book Losing Ground argued that social welfare harmed its supposed beneficiaries, entrenched them in poverty, bribed them into a culture of widespread nonmarital single parenthood, and undermined individual self-­reliance.7 Organizations representing working-­and middle-­class fathers argued against reducing their roles to child support provision: they wanted joint custody, visitation rights and enforcement, and consideration of the needs of second families.8 Their pleas fell on deaf ears. Room for demonizing poor fathers who genuinely cannot pay and the appetite for incarceration as a remedy of choice had expanded considerably. As Senator Long memorably put it: “you can’t squeeze blood out of a turnip; but you can sure put that turnip in jail.”9 In congressional testimony given in 1983–­84, feminist advocates retreated from social-­welfare positions. They supported a wide battery of mechanisms to strengthen collection: when they objected to a bill under consideration, it was, consistently, to seek stricter and more uniform enforcement.10 NOW continued to base its arguments for higher awards, wage and other-­asset withholding, cost-­of-­living adjustments to awards, and a national clearinghouse for award collection, on the “feminization of poverty.” Its constituency was middle-­class women who, after divorce, faced the devastating trifecta of custody, nonpayment of child support, and employment discrimination. Their argument was welfare avoidance for these mothers through private provision by fathers and ex-­husbands.11 Feminist willingness to carry the banner for poor children and mothers, and certainly for poor fathers, reached its nadir here. Feminists at this time began to play presidential-­election politics. NOW identified a new angle from which to pressure President Reagan: a “gender gap” in American voting patterns manifest in political science and polling data. Reagan lost popularity among women in 1983 in part as a result of his defunding of social programs in favor of increased defense spending. NOW swiftly launched a voter registration drive aimed at women and started publishing “gender gap” updates. Child support proved the perfect vehicle for Reagan’s strategy to win

298

Libby Adler and Janet Halley

back women, while simultaneously reassuring the religious right and social-conservative “family values” sector of his coalition. He was not trying to speak to all women; he was targeting middle-­class women identified by pollsters as swing voters. Reagan put a libertarian, Burkean social-­conservative, and neoliberal spin on child support enforcement. When he signed the 1984 Child Support Enforcement Amendments, strengthening enforcement and mandating that participating states provide services to non-­A FDC families, he said: Instead of creating more dependency on government, we’re requiring responsible behavior by our citizens. . . . [This law is] not only aimed at justice for the children but also at encouraging ethical behavior and bolstering vital social institutions. We hope that by placing the responsibility where it should be, on the parent, people will be encouraged to make moral decisions.12

Family responsibility was now a coercive and highly moralized program for the poor; child support replaced social-­welfare support not merely for budget reasons but as a poverty program. Stepping into this rightward-­veering political context, NOW sought the extension of IV-­D services to non-­AFDC mothers. The Social Security Amendments of 1975 (signed by Gerald Ford on January 4) permitted IV-­D agencies to serve these families, but over the next ten years only half the states had opened their doors to them.13 Reagan’s legislation mandated IV-­D agencies to serve non-­welfare moms who opted into their system. A remarkable confluence of center-­left feminist, social-­conservative, and neoliberal ideologies supported extension of the system. Feminist organizations, issue-­specific organizations, and women in Congress devoted to taking the initiative on women’s issues deserve some of the credit as well as some of the blame for what child support enforcement was becoming. They had reshaped child support into a middle-­class issue. They had helped redirect the rhetoric supporting a welfare funds recoupment program into a campaign for nonpoor custodial parents. And, in part by leveraging the gender gap, they wedged Reagan into signing the 1984 Act and celebrating it as proof that he cared about “women who have been forced through no fault of



“You Play, You Pay”

299

their own on to welfare rolls due to abandonment.”14 Feminists were now enmeshed in the politics of deserving versus undeserving poor.

1984–­93 Between 1984 and Bill Clinton’s 1992 campaign for the presidency, the ideological terrain for welfare and child support changed dramatically. Up until now, budget hawks regarded child support as a form of recoupment within a tax-­and-­transfer social-welfare program that they loathed. Now, child support morphed into a species of social welfare in and of itself—­a government-­run but privately funded social-­welfare program that justified contraction of tax-­and-­transfer provision to the poor. Democrats as well as Republicans promoted this new vision. Laying out his priorities for welfare reform in 1987, Democratic senator Daniel Patrick Moynihan entitled his Senate subcommittee hearing on AFDC “Welfare Reform or Replacement? (Child Support Enforcement).”15 Moynihan had penned the infamous 1965 Moynihan Report tracing high rates of black male unemployment and black female unmarried single parenthood not to welfare but to the pathology of the black family and to its “matriarchal” structure.16 His preliminary statement set out the new center-­right Democratic position: First, the primary responsibility for child support rests with the child’s parents. In a one-­parent family, the custodial parent has every right to expect the absent parent to contribute. . . . Second, the able-­bodied custodial mother of the child also has a responsibility to support her child by working, at least part time. However, if we expect a mother to go to work, it is incumbent upon us to help her train for and find a job. At the same time, we must provide the child-­care, support, and transitional services that a working single parent requires. Third, to the extent that parental support payments are inadequate, the government should provide a time-­limited child-­support supplement.17

Moynihan saw the family as the primary social-­welfare program and the assumption of family responsibility through labor market engagement by both parents as the key driver of the system. Only if that system fails does government have a role to play—­and, even then, only temporarily.

300

Libby Adler and Janet Halley

During this period, the Republicans pushed still further away from a social-­welfare model. E. Clay Shaw (R-­Fla.), the ranking Republican member of the House Ways and Means Committee Human Resources Subcommittee,18 was particularly concerned that welfare could function as incentive to nonmarital parenthood. Like Moynihan, he advocated welfare-­to-­work, time-­limited AFDC and mandatory job and training programs.19 But whereas the Democrat favored government-­ provided jobs and child care and other services, the Republican converted these forms of provision into social-­control mandates. At Moynihan’s 1987 hearing, a coalition of left-­of-­center social-­ welfare groups including the NWLC, the Urban League, and the Catholic Conference argued for strengthening AFDC by making it more responsive to the needs of poor women and children and specifically advocated for poor black Americans.20 None spoke in favor of child support enforcement: in that context, a deafening silence. Meanwhile, a group of policy experts was developing a pruned-­ down, neoliberalized social-­welfare program that they hoped could be adopted even in an environment increasingly hostile to tax-­a nd-­ transfer dependency support. This expert push emerged from Wisconsin’s IV-­D bureaucracy, which in 1984 obtained a waiver of AFDC requirements so that it could develop a pilot program called child support assurance. Irwin Garfinkel, the leader of the effort, built child support assurance on the presumption that all children with absent parents would be provided with paternity establishment and child support orders. Child support would be calculated according to a simple legislated formula and withheld from wages. The distinctive feature of child support assurance was that the state would also assure child support to every child in the program to a statutory level; if that commitment were higher than funds actually received from the father, the state would make up the difference.21 The program would take full advantage of child support before the taxpayer shouldered any costs. The Wisconsin pilot program gave Garfinkel data needed to fight for this remnant of social welfare.22 In the last years of the George H. W. Bush administration, child support assurance enjoyed bipartisan sponsorship and widespread support among left-­of-­center groups as the so-­called Downey-­Hyde bill.23 Supporters of Downey-­Hyde convened a hearing in the summer of 1992, at which NWLC and ACES made strong statements for it.24



“You Play, You Pay”

301

Downey-­Hyde represents the high-­water mark of social-­welfare support for poor noncustodial parents. It included them in the jobs programs developed to move mothers from welfare to work and provided for forgiveness of child support for fathers struggling in entrenched poverty. Poverty advocates staged a show of force at the hearing on behalf of poor men.25 A representative of the Manpower Demonstration Research Corporation, which had conducted studies of demonstration projects sponsored by an Unemployed Parent Program authorized in the 1988 Act, testified to broad economic trends that created a chronically underemployed population of young men. He urged that, for those who genuinely cannot pay, training made sense and enforcement did not.26 But by now, feminist groups—­which in 1987 had aligned with the left—­were making a decisive rightward turn. Feminist advocates opposed the Downey-­Haynes provisions for poor men. At the 1992 hearing, the NWLC made a major statement in support of child support assurance in which it opposed including men in jobs programs or allowing even case-­by-­case forgiveness of child support arrearages for chronically indigent fathers.27 In 1993, a coalition including feminist advocates submitted a joint statement to the House Ways and Means Committee Human Resources Subcommittee supporting child support assurance “coupled with aggressive child support enforcement”28—­by this time a code phrase for a collection-­only policy on child support. The coalition’s only concession to the agenda of the poverty groups was a one-­line recommendation that “no paying parent should be asked to pay child support at a level that would put her or his living standard below” the level set for AFDC or other welfare-­program eligibility.29 It supported none of the actual policy tools protecting indigent fathers set forth in Downey-­Hyde or recommended by the poverty groups. With the poverty groups to their left and both plausible presidential hopefuls—­Bill Clinton and incumbent George H. W. Bush—­to their right, the feminist groups moved rightward, splitting explicitly from advocates for poor men. Two new GF players, meanwhile, also carried the feminist banner rightward. First, mothers emerged as an organized voice for middle-­class divorced women quite distinct from the more social-­welfare-­oriented feminist advocates. Custodial parent groups proliferated, but Geraldine

302

Libby Adler and Janet Halley

Jensen’s ACES pulled ahead of the pack during this interim period. Jensen founded ACES in 1984 when her ex-­husband refused to pay court-­ordered support. She depicted herself as victim-­heroine, fighting for her children against a callous deadbeat. The ACES campaign put into play vivid stories of middle-­class women driven onto welfare by shirking fathers: precisely the “no fault of their own” welfare recipients Reagan had invoked. In 1993 testimony before the House Ways and Means Committee’s Subcommittee on Human Resources, Jensen spoke of the families forced to live in shelters or with relatives after divorce, of low-­income women who went onto welfare to gain child support enforcement, and of state recalcitrance to help. She urged Congress to fully nationalize the child support enforcement system, taking it out of the hands of states entirely. Paternity establishment, child support amounts, collection, and enforcement had to be housed in a central agency, not in a patchwork of state judges and lackadaisical local bureaucrats. Wage withholding had to be automatic and government-­r un, not routed through employers. Jensen supported child support assurance but promised that it would need little funding if child support enforcement were made rigorous and systematic. Neither chronically poor women nor men were her concern. This period also saw the emergence of crypto-­feminist state and federal bureaucrats organized to push technocratic reform on behalf of children and mothers. Here we have the transformation of feminist advocacy into expertise. The preeminent example of this emerging voice was Marilyn Ray Smith, chief legal counsel and associate deputy commissioner at the Child Support Division of the Massachusetts Department of Revenue.30 By the time Clinton had committed his administration to welfare reform and child support on the campaign trail, Massachusetts had become a key laboratory for child support enforcement, but unlike Wisconsin, the trail it was blazing was neoliberal. Smith was able go to Washington, D.C., with studies showing that child support could make the state money while making parents responsible. At the height of the PRWORA debate, she was the president of the National Child Support Enforcement Association (NCSEA) with a membership made up of top administrators from IV-­D agencies in all fifty states. She directed the NCSEA to become an aggregator of social science research, and as its leader she offered herself as an expert advisor to the White House, HHS, Congress, the



“You Play, You Pay”

303

National Conference of Commissioners on Uniform State Laws while it was drawing up UIFSA, and the congressionally created Commission on Interstate Child Support. The terrain for all the players shifted dramatically when the Commission on Interstate Child Support, often dubbed the Interstate Commission, established by the Family Support Act of 1988,31 issued a report.32 The Commission was chaired by Margaret “Meg” Campbell Haynes and staffed by Senator Bill Bradley (D-­N.J.), Kennelly, Roukema, high-­up HHS staff and state IV-­D bureaucrats, family-­court judges, and leaders in the legal community. Jensen was the sole member representing activist mothers, and a social worker named Don Chavez represented fathers. Kennelly and Roukema were also part of the congressional GF contingent. Mandated specifically to resolve problems of interstate enforcement, it had to cut through technical choice-­of-­law impediments and craft a national system. The Commission determined that the entire system needed to be overhauled, that it should be a federal/state partnership, and that it should include mandates for states. It recommended that states be required to establish child support guidelines, standardize early paternity establishment rules, and adopt a long-­a rm statute and UIFSA to determine the hierarchy of conflicting orders and ensure interstate enforcement. States would be required to participate in an integrated national registry coordinating work and child support information and to facilitate income withholding and direct transfer to custodial parents across state lines. Child support assurance split the Commission, with some members regarding it as a necessity and others as a return to the bad old days of AFDC-­style welfare; the resulting compromise endorsed pilot programs, effectively damning the idea.33 Jensen dissented from the entire report. Her main objections were that it fell short of full federalization including guidelines and that it did not commit to child support assurance for all single-­parent households and a massive increase in federal funding.34 Chavez submitted a long dissent arguing that ensuring fathers’ involvement in their children’s lives should be the key policy driver, and another commissioner submitted a partial dissent seeking deferral of child support payments that the obligor and his new family could not pay.35 Several commissioners dissented from shifting so much control to the federal level.36

304

Libby Adler and Janet Halley

A “center” plan, rejected by the advocates for mothers and for fathers, was now in the game. Thus, the welfare/child support field moved right, and GF moved right with it. The legislation that was passed during this period tightened the system and made it more punitive. For instance, Senator Bill Bradley put through the so-­called Bradley Amendment to the budget bill of 1986, converting child support orders into final judgments subject to enforcement without further judicial action and giving them interstate enforceability under the full faith and credit clause of the Constitution. These rules also barred retroactive modification of a child support order (a rule that plays a large role in the delinquency of low-­income men, their incarceration, and the vicious cycle of their inability to pay).37 Crossing state lines to evade a child support order or failing to pay one due across state lines became a federal crime.38 Federal judges were given authority to make full payment of overdue child support a condition of probation.39 And federally imposed bureaucratic automation timetables, coordination of the Parent Locator Service with wage and unemployment data, and mandates to adopt child support amount guidelines and to make wage withholding immediate tightened up the system in piecemeal ways that were consistent with the Commission recommendations.40 For center-­left, social-­ welfare feminists and poverty advocates involved in this fight during this interim period, political conditions were bad and about to become still worse.

1994–­96 The first term of Clinton’s presidency divides into two dramatically different periods: the first two years, when he enjoyed a Democratic majority in both houses of Congress, and the second, after the Republican midterm landslide. In 1994–­95, the incoming New Democrats’ welfare platform was considerably more about family responsibility and work and less about social welfare than anything Democrats had advanced before; and when the Republicans gained the upper hand in Congress, they moved welfare reform still further to the right. The campaign for welfare reform stimulated and fed on vilification of the poor. They were denounced as leeches, cheaters, welfare queens, deadbeat dads—­lascivious, lazy, sociopathic, and, in policy-­speak, “dependent.” Polls showed that large majorities of women as well as



“You Play, You Pay”

305

men voters resented seeing their hard-­earned dollars go to support people they regarded as conniving shirkers. Abortion and domestic violence were consensus issues among the NOW leadership and rank and file, but poverty split the left-­leaning Eastern Seaboard leadership from an increasingly conservative liberal-­ feminist national membership who wanted, for example, poor women to be required to work.41 As Martha Davis, then staff attorney for NOW, ruefully observed, “We have been saying ‘We represent women’—­but it has been obvious to the President’s men that we do not.” 42 Clinton’s welfare plan wedged between these constituencies and weakened the hand of social-welfare-oriented leftists in the national feminist leadership.

Clinton’s First Two Years Clinton appointed a Working Group on Welfare Reform, Family Support, and Independence headed by Bruce Reed, his chief domestic policy advisor, along with David T. Ellwood and Mary Jo Bane, assistant secretaries within HHS. Ellwood put Paul Legler at the head of a Child Support Interest Group inside HHS.43 Ellwood, Bane, and Legler were all taking breaks from professorships at the Harvard Kennedy School, where Ellwood and Bane had coauthored important policy reform research on child support.44 The Kennedy School team thought welfare dependency was bad for its supposed beneficiaries and wanted to move families and the poor into self-­sufficiency by putting in place job supports, imposing time limits on welfare, and redesigning the social safety net. This was the apex in government for the social-­welfare GFeminists. Legler’s group consulted regularly in the drafting process with Haynes, former head of the Interstate Commission, with NCSEA and the National Council of State Child Support Administrators, as well as with the feminist advocates.45 In this brief window, feminist advocates were insiders not only on the Hill but in HHS and even the White House. The same coalition that supported child support assurance before the election did so again after it.46 They did not mind raising the specter of entitlements and seemed to value the proof that social welfare was not dead. But the new neoliberal defense of the program rested on the claim that it would make money by reducing the AFDC rolls. The

306

Libby Adler and Janet Halley

left still spoke in terms of social welfare, while within government, the vocabulary had become pervasively neoliberal: how best to shift public burdens to private shoulders. Within that frame, enforcement of child support against poor fathers was the welfare program of choice. But what really doomed child support assurance was White House opposition. The New Democrats saw it as welfare as we already knew it—­an entitlement program—­and precisely what Clinton had vowed to sweep away. Meanwhile, social conservatives opposed it for subsidizing and, they claimed, incentivizing nonmarital childbirth and child rearing. Ellwood decided not to put up resistance lest the White House take control over drafting the administration bill, as it had done with health care. That left child support enforcement, an issue on which by now every­ one except Jensen (who continued to demand full federalization) was in pretty smooth harmony: the Interstate Commission’s recommendations should become law—­and, in 1996, they would. The work feminists did on child support enforcement, working as deep insiders before the midterm elections, survived the massive change in the political landscape wrought by the midterm elections. As Legler reports: The child support title [from the Work and Responsibility Act of 1994] was incorporated, almost verbatim, in other major child support enforcement bills introduced in 1995, including the Personal Responsibility Act of 1995. Although there were a number of unsuccessful [Republican] efforts within Congress to make changes to these child support provisions, they were subsequently incorporated in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA).47

This means that the work feminists did on child support enforcement, working as deep insiders before the midterm elections, became incorporated into the child support provisions of PRWORA. Indeed, Ron Haskins, who was soon to serve as the chief staffer on the House Ways and Means Committee, later wrote with amused chagrin about the degree to which the template generated by Legler in close cooperation with the activist GFeminist groups and the Women’s Caucus became the Republicans’ child support reform. He tells of offering Nancy Ebb, of the Children’s Defense Fund (CDF), the opportunity to



“You Play, You Pay”

307

sneak through the back door of the Rayburn House Office Building wearing sunglasses, if she would then help him fine-­tune the distribution rules—­an offer, he reports, that she eagerly accepted.48 Haskins recalls that he did not want Bill Archer, Republican Chair of the Ways and Means Committee, or Marion Wright Edelman, head of the CDF, to know how hand-­in-­glove Ebb and Haskins became in their joint effort to put the last touches on the bill that became the child support system under PROWRA.49 Even then, there were many left/right struggles still to come, but the basic bottom line is that GFeminists played a direct, important, and enduring role in building the new child support system.

After the Republican Sweep of Congress The landscape for welfare and for child support was transformed by the Republican takeover of Congress. In addition to wanting a more punitive welfare bill, the newly elected Republicans attacked child support enforcement. To them, it was way too liberal. They were appalled at the power that child support enforcement concentrated in federal mandates, at the systemic invasions of privacy, and at the considerable mandated government spending on bureaucracy at the state level. According to Legler, they sought to “defeat new hire reporting requirements, impose fees, reduce funding, weaken centralized collection requirements, impose unreasonable paternity establishment requirements, and delete ‘family first’ distribution.”50 After the midterms, the Clinton White House shifted alliances, turning away from the social-­movement interest groups and toward the expert state bureaucrats who were running the more advanced, neoliberalized IV-­D agencies.51 This was the moment for Marilyn Ray Smith’s ascendency. Smith enjoyed bipartisan alliances: with Ellwood and Legler and with Republicans on the Hill. She was untainted by past support of child support assurance. As she described the situation later to Krueger, the 104th Congress, from her point of view, was “the best of all worlds.”52 The crypto-­feminist technocrat Smith represents a GF segment considerably to the right of the feminist advocates. The Women’s Caucus also played a decisive role. To its members, child support enforcement was the crucial pro-­woman piece of welfare reform. Its child support enforcement bill became the Republican’s baseline legislation, 53 and the White House, rather than set up contesting legislation, fell in behind the Women’s Caucus bill.54 In

308

Libby Adler and Janet Halley

committee, the newly empowered Republicans voted for amendments that intensified punishments, removed administrative liens, and deleted driver’s license revocation and seizure of personal property. As soon as they stepped out of committee and into the hallway, however, they walked into a buzz saw of feminist recrimination from the Women’s Caucus leadership. Representative Patricia Schroeder denounced Republicans for indifference to the plight of women and warned her male colleagues that the Women’s Caucus had lost all patience with their continual failure to pass its child support bills.55 When the unamended bills were reintroduced on the House floor, they passed unanimously or near unanimously, another index of feminist political muscle. None of the Republican efforts to water down the new enforcement rules made it into the final bill.56 Social-­welfare feminists fought last-­ditch battles on some small rules, though their battlefield was by now dramatically narrowed. Republicans wanted to bar welfare recipiency by mothers of children whose fathers could not be located.57 In response, the Clinton administration proposed cutting off uncooperative but not cooperative mothers. Smith actively supported this strategy. The NWLC argued that failings in the bureaucratic process were to blame for cases in which fathers could not be located; it proposed small fixes designed to facilitate agency efficacy.58 The resulting compromise delegated the level of sanctions for noncooperating mothers to states. We think this shows that the social-­ welfare feminists had enough pull in Congress to help Clinton split the difference and keep the new Republicans from getting everything they wanted—but note that they supported shifting the burden of social welfare onto fathers. Family-­first was the last stand for social-­welfare feminists. Krueger tells of their intense and emotional effort to save it in the spring of 1995. The preexisting AFDC rule allowed states to recoup all arrearages received after a family had left the AFDC rolls. Family-­first, an administration proposal, divided arrearages collected after a family went off public assistance into those accrued before and those accrued after that transition. States could continue to recoup arrearages accrued during AFDC recipiency, but now the family would get those accrued after it ended. The administration continued to support the $50 pass-­through as well. Both programs were on the Republicans’ chopping block. Acting with a remarkable degree of coordination, the Women’s Caucus, the



“You Play, You Pay”

309

NWLC, and the NCSEA supported family-­first; the Women’s Caucus and the NCSEA treated mandatory pass-­through as a sacrificial lamb, though the NWLC did not.59 Smith argued that in Massachusetts, family-­first was crucial to keeping families off welfare; Senator Nancy Johnson argued that giving up the $50 pass-­t hrough would pay for family-­first; and Shaw, a social-­conservative Republican, supported the bill complete with family-­first.60 Republican speaker of the House Newt Gingrich finally approved a compromise: with family-­first, pass-­t hrough as a state option, and a federal promise to reimburse states if they lost money through the rule change.61 Family-­first became the last shred of social welfare to survive. GFeminists were important in that fight. But note the pathos of this achievement from a social-­welfare perspective: family-­first payments came not from the state but from fathers. Advocates were more successful in their push for the Family Violence Option (FVO) than they were in any of their efforts to preserve aspects of traditional social welfare. The FVO permits states to screen for domestic violence in its welfare-­receiving population, make appropriate referrals to services, and waive program requirements where it determines that compliance would impede a recipient’s escape from violence or “unfairly penalize” victims of domestic violence.62 We think that the relative success of the FVO compared with the dismal results on the social-­welfare side of the ledger tells us something about GF prospects in neoliberal times: protecting women from violence by poor men63 evokes a coalition with conservatives that is impossible in projects seeking economic redistribution. Though the social welfare GFeminists played a heroic role in a tough fight, it is worth noting that, in the process, they retreated from strong positions supporting poor men. This was a choice: the Urban League was still advocating on behalf of fathers too poor to pay. But even the social-­welfare feminists were absent from this push. Smith later explained her thinking on this issue: it was more important to secure a rigorous enforcement system now, while the window of opportunity for that was open. Poor men could wait.64 We think this trend inside the beltway made a mark in feminist politics more generally. In the spring of 1995, left-­leaning feminist academics, activists, advocates, and welfare-­rights-­group leaders formed a new group, the Women’s Committee of One Hundred, to

310

Libby Adler and Janet Halley

stand outside government and protest. Though they doubtless felt restricted in what they could argue by the rhetorical contours of the debate inside government, they were not nearly as constrained as the feminist advocacy groups who stood to lose invitations to testify before Congress and to participate in White House policy groups. The Committee launched a left feminist position into the welfare reform debate. They deplored the punitive character of welfare reform for women and sought social-­welfare support for mothers if they were going to be forced to work but not for fathers if they were going to be forced to pay child support. They included strong child support enforcement in their platform. At the end of the titanic struggle between the White House and congressional Republicans over welfare reform, the Women’s Caucus used child support enforcement as the sweetener for the entire welfare bill.65 When it seemed that welfare reform might not pass at all in the 104th Congress, a bipartisan coalition of Women’s Caucus leaders along with Bill Bradley threatened to pass child support enforcement legislation separately: to do this the Republican women had to break ranks with their leadership.66 Centrist and center-­right GFeminists—­ elected members of both houses of Congress—­helped to ensure the end of welfare as we knew it precisely because they were so ferociously committed to child support enforcement.

Conclusion The system for child support collection that resulted from the reforms outlined here is very challenging to assess normatively. It has benefited millions of children and their single mothers by moving billions of dollars from the pockets of shirking fathers into the hands of custodial mothers. It has prevented many noncustodial fathers from falling delinquent and maybe going to jail for it, by automatic wage withholding that effectively insures them from default as long as they stay on payroll. It has conveyed the message to noncustodial fathers: you can avoid financial responsibility only if you give up life in the formal economy. It forces mothers who need public assistance to rope the fathers of their children into the system even if they are afraid of them and even if they have a modus vivendi with them that will be destroyed when the state steps in: poor women often attest that they do not want



“You Play, You Pay”

311

to alienate the fathers of their children or lose the more informal forms of child support they and their kin were willing and able to provide. It has been hardest on low-­and no-­income fathers, who end up owing even if they cannot pay. The Bradley Amendment requires them to obtain downward adjustments when their income falls short in ways that simply do not work for poor men. Their arrearages can result in their being forced into the informal economy and a life “on the run.” Or they can go to jail on contempt or for willful failure to pay. The state benefits from the system. It has recouped billions of dollars from fathers for public assistance paid to the mothers of their children. It enjoyed bipartisan support because it effectively exempts the public sector from its traditional obligation to the poor. And the jailing of delinquent obligors augments the abuse of incarceration as poverty policy. While we think the upsides of the system are important, we think this distributional pattern is disturbing, and we join a growing feminist and critical-­race chorus of concern about the downsides for poor children, poor women, and poor men.67 We think the story of feminist involvement in the construction of this system places some of the credit—­a nd some of the responsibility—­on GFeminist shoulders. To be sure, the main drivers of policy were their opponents in the struggle: right and center-­right forces that vastly outnumbered them. Left-­of-­center feminist advocates stuck to every social-­welfare gun they could find right through to the bitter end. They deserve credit for the tenacity and creativity they showed over years of increasingly adverse struggle. But they also committed themselves, at the beginning of the Clinton administration reforms, to the full build-­out of the new child support system as a component of neoliberal welfare reform and played a key role in constructing it. Poverty-­ oriented feminists had the option of expressing dissent even if it meant losing their place at the table and being relegated to a much different set of advocacy tools—­a tough call. We think feminist political life in an era of GF must involve an ethic of responsibility that makes such decisions explicitly. Being a feminist governor meant managing conflicts of interest between poor and middle-­class women. It was feminists who turned child support enforcement into a site for these conflicts, by advocating for middle-­class women’s access to IV-­D services. Predictably, the voices

312

Libby Adler and Janet Halley

expressing middle-­class interests got more uptake in Congress and the White House and the poor got more regulation. Communities of color are distinctly adversely regulated by so many enforcement systems that use penal coercion as standard operating procedure that child support enforcement backed up by criminal sanctions must be considered a working part of their chronic disempowerment. Our story shows that key insiders voiced these issues through to the end of the struggle over PRWORA but that feminist groups by then had fallen silent on them. Perhaps this was justified by strategic and tactical judgments. For each person and group involved, these decisions would have also involved hard moral judgment calls. We do not pretend to have a right answer to these questions. But a take-­home lesson of this research for us is that feminists need a robust engagement with the social dynamics of poverty and race—­a nd a commitment to the well-­being of men—­to responsibly make rules for poor parents and children.

Notes Thanks to Duncan Kennedy, Mary O’Connell, and participants in the Hamilton College Levitt Center Faculty and Student Seminars for comments on this chapter; to the librarians of the Harvard Law School Library, Hannah Andrews of the National Child Support Enforcement Association, Ron Haskins, and Eva Feder Kittay for generous and astute assistance with research into the legislative history; and to Sarah Deibler, Molli Freeman-­Lynde, and Laura Lane-­Steele for superb research assistance. 1. This section, and this chapter generally, derive descriptions of welfare and child support reform from four key sources: Ruth Gillie Krueger, Analyzing the Development of the American Child Support System: A Study in Social Policy Development (San Jose, Calif.: Writers Club Press, 2001 (hereafter Krueger, American Child Support System); Jocelyn Elise Crowley, The Politics of Child Support in America (Cambridge: Cambridge University Press, 2003); Ron Haskins, Work over Welfare: The Inside Story of the 1996 Welfare Reform Law (Washington, D.C.: Brookings Institute Press, 2006); and Paul K. Legler, “The Coming Revolution in Child Support Policy: Implications of the 1996 Welfare Act,” Family Law Quarterly 30, no. 3 (1996): 519–­63. 2. Personal Responsibility and Work Reconciliation Act of 1996, Pub. L. No. 104-­ 193, 110 Stat. 2105 (codified as amended in scattered sections of 42 U.S.C.). 3. Noah D. Zatz, “A New Peonage? Pay, Work, or Go to Jail in Contemporary Child Support Enforcement and Beyond,” Seattle University Law Review 39 (2016): 927–­55, at 933. 4. Child Support and the Work Bonus: Hearings on S. 1842, 2081, before the S. Comm. on Fin., 93d Cong., 260–­66 (1973) (excerpts from Carol B. Stack, “The Con­ cept of Family in the Poor Black Community”). For Stack’s full analysis, see Stack,



“You Play, You Pay”

313

All Our Kin: Struggles for Survival in a Black Community (New York: Harper & Row, 1975). 5. Crowley, The Politics of Child Support, 127–­59. 6. Child Support Enforcement Program Reform Proposals: Hearings before the S. Comm. on Fin., 98th Cong., 53 (1984) (hereafter Senate Finance Committee 1984 Hearing). 7. Charles A. Murray, Losing Ground: American Social Policy, 1950–­1980 (New York: Basic Books, 1984). 8. Senate Finance Committee 1984 Hearing (statement of Kenneth R. Pangborn, President, Men Int’l, Inc., Clearwater, Fla.); ibid., 294–­95 (statement of Alan Lebow, President, Nat’l Cong. for Men, Southfield, Mich.); ibid., 296–­310 (statement of James A. Cook, President, Joint Custody Ass’n, Los Angeles, Calif..); ibid., 311–­17 (statement of Danny Piper, Founder, HELP—­Help Encourage Loving Parents, Burke, Va.); ibid., 444–­48 (letter from David L. Levy, Legis. Dir., Free Men Inc.); ibid., 471–­79 (letter from Male Parents for Equal Rights and the Second Wives Coal.). 9. Ibid., 24–­25 (statement of Sen. Paul Trible Jr.) (interjection by Sen. Long). 10. Ibid., 211–­35 (statement of Ann Kolker, Policy Analyst, Nat’l Women’s Law Ctr., Washington, D.C., accompanied by Mary Ann Stein, Women’s Legal Def. Fund). 11. Ibid., 497–­510 (statement of Judith Avner, Staff Att’y, NOW LDEF, N.Y.C., for the Nat’l Org. for Women Legal Def. and Educ. Fund, and the Nat’l Ctr. on Women and Family Law). 12. President Ronald Reagan, “Remarks on Signing the Child Support Enforcement Amendments of 1984,” August 16, 1984, online by Gerhard Peters and John T. Woolley, The American Presidency Project, http://www.presidency.ucsb.edu​ /ws/?pid=40256. 13. Crowley, The Politics of Child Support, 133. 14. Reagan, “Remarks on Signing the Child Support Enforcement Amendments of 1984.” 15. Welfare: Reform or Replacement? (Child Support Enforcement): Hearings before the Subcomm. on Soc. Sec. and Family Policy of the S. Comm. on Fin,, 100th Cong., 10–­11 (1987) (hereafter Senate Social Security and Family Policy Subcommittee 1987 Hearing). 16. United States Department of Labor Office of Policy Planning and Research, The Negro Family: The Case for National Action (Washington, D.C.: United States Government Printing Office, 1965). 17. Senate Social Security and Family Policy Subcommittee 1987 Hearing, 10–­11 (statement of Sen. Daniel Patrick Moynihan, Chairman, Subcomm. on Soc. Sec. and Family Policy); emphasis added. 18. Haskins, Work over Welfare, 254. 19. Downey-­Hyde Child Support Enforcement and Assurance Proposal: Hearings before the Subcomm. on Human Resources of the H.R. Ways and Means Comm., 102d Cong., 5 (1992) (statement of E. Clay Shaw) (hereafter House Human Resources Subcommittee 1992 Hearing); see also Krueger, American Child Support System, 204–­5. 20. Senate Social Security and Family Policy Subcommittee 1987 Hearing, 238–­72 (statement of Dr. Douglas G. Glasgow, Vice President, Washington Operations,

314

Libby Adler and Janet Halley

National Urban League, Inc.); ibid., 273–­87 (statement of Rev. J. Bryan Hehir, Sec’y, Dep’t of Soc. Dev. and World Peace, U.S. Catholic Conference); ibid., 428–­48 (“Perspectives on Women and Welfare Employment,” a publication of the Nat’l Coal. on Women, Work and Welfare Reform). 21. Irwin Garfinkel, Assuring Child Support: An Extension of Social Security (New York: Russell Sage Foundation, 1992), 42–­50. See also Irwin Garfinkel, Elizabeth Phillips, and Tom Corbett, A New Way to Fight Child Poverty and Welfare Dependence: The Child Support Assurance System (CSAS) (New York: National Center for Children in Poverty, 1992); Paula Roberts, Ending Poverty as We Know It: The Case for Child Support Enforcement and Assurance (Washington, D.C.: Center for Law and Social Policy, 1994). 22. Garfinkel, Assuring Child Support, 56–­59. 23. Krueger, American Child Support System, 204–­12. 24. House Human Resources Subcommittee 1992 Hearing, 292–­302 (statement of Nancy Duff Campbell, Co-­President, Nat’l Women’s Law Ctr.); ibid., 126–­33 (statement of Geraldine Jensen, ACES). 25. House Human Resources Subcommittee 1992 Hearing, 244–­53 (statement of Gordon L. Berlin, Senior Vice-­President, Manpower Demonstration Research Corp., New York); ibid., 238–­39 (statement of Sarah Dustin, Parents for Justice). 26. House Human Resources Subcommittee 1992 Hearing, 244–­53 (statement of Gordon L. Berlin); see also Krueger, American Child Support System, 215. 27. House Human Resources Subcommittee 1992 Hearing, 292–­302, 300 (statement of Nancy Duff Campbell, Co-­President, Nat’l Women’s Law Ctr.); see also Krueger, American Child Support System, 209. 28. Child Support Enforcement: Hearing before the Subcomm. on Human Resources of the H.R. Ways and Means Comm., 103d Cong., 184–­94, 185 (1993) (statement by the Ctr. for Law and Soc. Policy, Children’s Def. Fund, Nat’l Women’s Law Ctr., Women’s Legal Def. Fund, et al., “A Vision of Child Support Reform”). 29. Ibid., 190. 30. In the interest of disclosure, we note that Libby Adler served as a staff attorney under Smith in the Massachusetts Department of Revenue during the run-­up to and initial rollout of PRWORA. 31. Family Support Act of 1988, Pub. L. No. 100-­485, 102 Stat. 2343 (codified as amended at 42 U.S.C. § 654 [2012]). 32. U.S. Commission on Interstate Child Support, Supporting Our Children: A Blueprint for Reform (Washington, D.C.: Government Printing Office, 1992). 33. Ibid., 257–­60. 34. Ibid., 363–­64 (dissenting statement of Geraldine Jensen); Report of the Interstate Commission on Child Support: Hearing before the Subcomm. on Human Resources of the H.R. Ways and Means Comm., 102d Cong., 89–­104 (1992) (statement of Geraldine Jensen, Commissioner, U.S. Commission on Interstate Child Support, and President, Ass’n for Children for Enforcement of Support, Inc.). 35. U.S. Commission on Interstate Child Support, Supporting Our Children, 327–­57 (dissenting statement of Don Chavez); ibid., 305–­9 (dissenting statement of Michael E. Barber). 36. U.S. Commission on Interstate Child Support, Supporting Our Children, 305–­9 (dissenting statement of Michael E. Barber); ibid., 323–­25 (dissenting statement of



“You Play, You Pay”

315

Schuyler J. Rabb); ibid., 365–­74 (dissenting statement of Judge Battle Robinson and Judge Frances Rothschild). 37. Omnibus Budget Reconciliation Act of 1986, 42 U.S.C. § 666(9) (2012). 38. Child Support Recovery Act of 1992, 18 U.S.C. § 228 (2012). 39. Ibid., § 3563(b) (2012). 40. Family Support Act of 1988, Pub. L. No. 100-­485, 102 Stat. 2343 (codified as amended at 42 U.S.C. § 654 [2012]). 41. Felicia Kornbluh, “Feminists and the Welfare Debate: Too Little? Too Late?,” in Welfare: A Documentary History of U.S. Policy and Politics, ed. Gwendolyn Mink and Rickie Solinger (New York: New York University Press, 2003), 684. 42. Ibid., 683 (punctuation corrected). 43. Krueger, American Child Support System, 236–­40. 44. Mary Jo Bane and David T. Ellwood, The Dynamics of Dependence: The Routes to Self-­Sufficiency (Cambridge, Mass.: Urban Systems Research and Engineering, 1983); Ellwood and Bane, The Impact of AFDC on Family Structure and Living Arrangements (Cambridge, Mass.: Harvard University Press, 1984); Bane and Ellwood, Welfare Realities: From Rhetoric to Reform (Cambridge, Mass.: Harvard University Press, 1994). 45. Legler, “The Coming Revolution in Child Support Policy,” 525nn31–­34. 46. New Directions in Child Support: Child Support Assurance; Hearing before the Subcomm. on Children, Family, Drugs, and Alcoholism of the S. Comm. on Labor and Human Resources, 103d Cong., 42–­59 (1993) (statement of Nancy Duff Campbell, Co-­ President, Nat’l Women’s Law Ctr.). 47. Legler, “The Coming Revolution in Child Support Policy,” 526–­27; see also Haskins, Work over Welfare, 115. 48. Haskins, Work over Welfare, 155. 49. Ibid., 156. 50. Legler, “The Coming Revolution in Child Support Policy,” 527n45. 51. Krueger, American Child Support System, 285–­87, 302 (interview with Marilyn Ray Smith). 52. Ibid. 53. Haskins, Work over Welfare, 154–­55. 54. Krueger, American Child Support System, 290. 55. Ibid., 284; Haskins, Work over Welfare, 170. 56. Legler, “The Coming Revolution in Child Support Policy,” 527n45. 57. Ibid., 537nn82–­83. 58. Ibid., 536nn79–­80; Child Support Enforcement: Hearing before the S. Comm. on Fin., 104th Cong., 124–­25 (1995) (statement of the Nat’l Women’s Law Ctr.). 59. Child Support Enforcement and Supplemental Security Income: Hearing before the Subcomm. on Human Res. of the H.R. Ways and Means Comm., 104th Cong., 121–­25 (1995) (statement of Hon. Nancy L. Johnson, Rep., Conn.) (member of the Women’s Caucus); ibid., 8–­20 (statement of Marilyn Ray Smith, President, Nat’l Child Support Enforcement Ass’n, and Chief Legal Counsel and Assoc. Deputy Comm’r, Child Support Enforcement Division, Mass. Dep’t of Revenue); ibid., 64–­74 (statement of Nancy Ebb, Senior Staff Att’y, Children’s Def. Fund); ibid., 67, 73–­74 (for Nancy Ebb’s resistance to sacrificing the pass-­through); Child Support Enforcement: Hearing

316

Libby Adler and Janet Halley

before the S. Comm. on Fin., 104th Cong. 119–­29 (1995) (statement of the Nat’l Women’s Law Ctr.); ibid., 89–­99 (statement of Marilyn Ray Smith, speaking for both NCSEA and the Mass. Dep’t of Revenue). 60. Haskins, Work over Welfare, 159. 61. Krueger, American Child Support System, 298. 62. Ibid., 14. 63. See Priya Kandaswamy, “‘You trade in a man for the man’: Domestic Violence and the U.S. Welfare State,” American Quarterly 62, no. 2 (2010): 253–­77. 64. Krueger, American Child Support System, 290. 65. Ibid., 155–­57. 66. Ibid., 311. 67. See, e.g., Tonya L. Brito, “Fathers behind Bars: Rethinking Child Support Policy toward Low-­Income Noncustodial Fathers and Their Families,” Journal of Gender, Race & Justice 15, no. 3 (2012): 617–­73; Leslie J. Harris, “Questioning Child Support Enforcement,” Family Law Quarterly 45, no. 2 (2011): 157–­72; Solangel Maldonado, “Deadbeat or Deadbroke: Redefining Child Support for Poor Fathers,” U.C. Davis Law Review 39  (2006): 991–­1023; Anna Marie Smith, “The Sexual Regulation Dimension of Contemporary Welfare Law: A Fifty State Overview,” Michigan Journal of Gender & Law 8, no. 2 (2002): 121–­218, at 152–­67.

C H A P T E R 13

Governance Feminism in the French Republic Veils, Parité, and Feminists MALEIHA MALIK

At the end of the twentieth century and the beginning of the twenty-­ first century, French feminism has been dominated by debates about veils and Parité that have challenged France’s republican tradition of “difference-­blind” universalism. First, there have been controversies about the headscarf and face veils that resulted in the adoption of stringent national laws regulating Muslim women’s dress. At the exact same time as controversies emerged over veils, there was a second debate about gender quotas articulated as Parité that was a widespread movement to address the crisis of underrepresentation of women in French public life. Parité has succeeded. Gender parity laws, including an amendment to the French constitution, have been implemented in France, mandating affirmative action policies to enhance women’s representation in elected assemblies.1 Academic analysis and public commentary seldom relate these two campaigns to each other. Although there is no direct causal relationship between veils and Parité, it is nevertheless illuminating to explore the relationship between these two contemporaneous discourses about women, gender, and feminism at this juncture in France’s recent history. These two movements were not mere coincidences: they were intrinsically bound up in one another. Secularist and class-­privileged French women supported bans on the veil for Muslim and poor French and immigrant women, thereby securing legitimacy with increasingly nationalist political elites whose support was crucial to ensure Parité.

317

318

Maleiha Malik

In this discussion, I present a descriptive account of the veil and Parité campaigns that draws out the role of French feminists before I move on to develop a comparative analysis of veils and Parité. I identify four interrelated aspects of the process through which some French feminists secured victory for Parité but opposed the veil, thus stepping into a governance role in French law and society. First, I examine the techniques through which French governance feminists marginalized Muslim women’s voices and assumed to themselves the power to act as “proxies” for all women. Second, I argue that this “proxy power” to speak on behalf of Muslim women allowed French feminists to make a crucial trade-­off between the goals of gender equality and racial equality, which excluded Muslim women from access both to the public sphere and to political, social, and economic power.2 Third, I suggest that these conceptual and strategic choices, in turn, allowed feminists from racial majorities to align their goals with nationalist political elites. My fourth argument is that feminist objections that represented the veil as “barbaric” created a legitimizing discourse for the anti-­Islam policies of the far-­right French political party, the Front National. My conclusion is that an analysis of the role of some French feminists in the veil and Parité campaigns confirms the presence of Governance Feminism in the French Republic. More specifically, the veil and Parité campaigns generally, and the political strategies of many French feminists, illustrate some core concerns about Governance Feminism’s impact on women. For example, French feminists with greater social, economic, and political power attributed “autonomy deficits” to less powerful adult Muslim women who chose to wear Islamic veils and discounted the ways in which they may be able to exercise choice despite their structural disadvantage. The exercise of power on behalf of Muslim women rather than allowing them to speak in their own voice also had unintended consequences. It allowed French feminists to bifurcate the interests of women. On the one hand, the interests of French women who belonged to racial, cultural, and religious majorities were represented as a universal call for Parité. On the other hand, the distinct claims by a smaller group of North African and Muslim women for accommodation of veiling were rejected as outside the acceptable frame of French feminist politics. This political strategy produced unintended consequences that are a recurring feature of feminist exercises of power



Governance Feminism in the French Republic

319

in that they assume that they constitute progressive social reform on behalf of all women. More specifically, French Parité feminists advancing progressive politics found that their ideas were co-­opted by nationalist and far-­right political movements who selectively institutionalized feminist ideas and instrumentalized gender equality to legitimize anti-­migrant and anti-­minority politics targeting North African Muslim populations. This co-­option of Parité feminists and some of their ideas to advance gender equality had actual effects for the distribution of social, political, and economic goods. Although the stated goal of the “no veils” legal regulation was gender equality and the integration of Muslim women, its actual consequences were the exclusion of veiled Muslim women from social, economic, and political power. This included veiled Muslim women such as Faiza M., who was denied the right to French citizenship on the grounds that by wearing a face veil and submitting to her husband’s authority she has adopted a religious practice incompatible with essential values of the French community, particularly the principle of equality of the sexes; and Kenza Drider, who was denied a hearing at the Gerin Commission because she refused to remove her face veil. The labor market thus became more difficult for veiled Muslim women to access.3

Veils and Parité in the French Republic No Veils for Muslim Women On March 15, 2004, the law banning the Islamic headscarf in public schools was passed through an ostensibly neutral legal provision prohibiting the wearing of conspicuous religious symbols in public primary and secondary schools.4 Despite its seemingly neutral application, however, the main impetus for the ban was an anxiety about Islam and Muslim difference.5 The controversy over the Islamic headscarf (hijab in Arabic; foulard in French) was triggered in September 1989 when three female students were suspended for refusing to remove their headscarves in class at a secondary school in Creil, a town in northern France. Later that year, in November 1989, the Conseil d’État held that it was possible to reconcile the Islamic headscarf with the French principle of secularism (laicité). Lionel Jospin, then minister of

320

Maleiha Malik

education, decided that schools had the responsibility for decisions about the permissibility of headscarves in public schools. The French Conseil D’État took a nuanced, contextualized approach and confirmed that the decision about the Islamic headscarf should be left to individual schools. L’Affaire du Foulard remained a point of friction between French Muslim migrants, who were becoming increasingly visible in public, and the French state authorities. French feminists, as well as the general public,6 were divided about the Islamic headscarf. On the one hand, prominent feminist intellectuals such as Élisabeth Badinter stated that “The veil, it is the symbol of the oppression of a sex. Putting on torn jeans, wearing yellow, green or blue hair, this is an act of freedom with regard to social conventions. Putting a veil on the head, this is an act of submission. It burdens a woman’s whole life.”7 Sylviane Agacinski, who led calls for Parité, also opposed the veil and supported its legal prohibition. Minority women’s groups such as Ni Putes Ni Soumises (NPNS, translating as “Neither Whores nor Downtrodden”) were prominent in arguing in favor of a ban on the Islamic headscarf as a move toward protecting young Muslim girls. Other French feminists disagreed. Françoise Gaspard opposed essentialist definitions of gender that informed the Parité campaign and opposed the veil bans. Christine Delphy, another leading French feminist, signed a petition to protest against the law to ban conspicuous religious symbols and the Islamic headscarf. By June 2003, in the face of continuing public criticism of the veil, prominent members of the Socialist Party and conservative nationalists of the Union pour un Mouvement Populaire (UMP, or Union for a Popular Movement) had proposed a ban in public schools. President Jacques Chirac established a commission chaired by Bernard Stasi, composed of twenty-­eight members representing intellectuals, politicians, and community representatives, to investigate the principle of secularism and make suitable proposals. Their recommendations included a ban on conspicuous religious symbols in public schools that was subsequently enacted as Loi no 2004-­228 du 15 mars 2004 (Law No. 2004-­228 of March 15, 2004). On April 11, 2011, less than a decade after legal regulation of the Islamic headscarf in public schools, the French law criminalizing the face veil came into force. It had its immediate origin in the political



Governance Feminism in the French Republic

321

intervention of André Gerin, a Communist Party deputy from Vénissieux, who voiced anxieties about face veils after a high-­profile legal decision that denied French citizenship to Faiza M. in 2008 because her choice to wear a face veil was interpreted as indicative of her failure to adopt the Republican value of gender equality.8 In 2010, André Gerin was also the president of the cross-­party committee of French parliamentarians who recommended the ban on the face veil. Following recommendations of the Gerin Commission, the legislature prohibited the wearing of all face-­covering gear in public, including masks, niqabs, and burqas. The face-­covering ban imposed a fine starting from 150 Euros for each violation or, in the alternative, citizenship education. The relevant provisions also included fines and up to one year’s imprisonment for anyone who forced a woman to wear a face veil.

Parité for French Women In the 1990s in France, at the same time that public debates about veils and Muslim women were taking place, there were also calls for Parité through gender quotas to redress the underrepresentation of women in political processes and assemblies. Parité emerged from debates surrounding a 1989 report on equality by Elisabeth G. Sledziewski that criticized gender-­neutral conceptions of equality and called for “parity” as a political requirement for universal suffrage.9 These ideas were popularized by feminist activists who introduced the “concept” of Parité to a wider audience in France. Leading feminists who supported Parité included, for example, Françoise Gaspard, Claude Servan-­ Schreiber, Sylviane Agacinski, and Anne Le Gall. Subsequently, they presented these ideas through the form of a conference on women and political power in 1992 that led to a “declaration” galvanizing women activists and scholars to support Parité as a political demand. Between 1993 and 2000, media interventions, conferences, meetings, and manifestos focused on the demand for Parité. President Chirac, who would later establish the Stasi Commission to consider the Islamic headscarves in schools, fulfilled an electoral pledge in 1995 by creating the “Observatoire de la Parité entre les femmes et les hommes” (Observatory of parity between women and men), which was a state institution that provided expert advice to the French prime minister and other ministers on public policies concerning the promotion of equality between women and men in political, economic, and social areas.

322

Maleiha Malik

In December 1996, the Observatoire produced an important report that focused on sexual difference but failed to refer to racial and religious difference. It argued for a revision of the Constitution and for a law imposing sex-­based quotas. The leading opposition party at that time, France’s Socialist Party, supported Parité and gender quotas. In June 1997, the new socialist prime minister, Lionel Jospin, declared his intent to revise the French Constitution to modify its gender-­ blind universalism and permit a gender equality clause in what was a clear departure from France’s tradition of “difference-­blind” universalism. The leaders of both main political parties (Jacques Chirac and Lionel Jospin) adopted Parité as a goal. In June 1999, the French Parliament adopted the constitutional reform permitting electoral gender quotas.

Why Parité but Not Veils? A parallel reading of debates about veils and Parité between 1989 and 2013 raises important questions. Why did French political culture emphasizing “difference-­blind” universalism accept Parité and sexual difference but reject veils and the accommodation of racial and religious difference? At first blush, this seems like a contradiction: Parité reflects a minoritizing and veil bans a universalizing political ethic. My analysis focuses on the role of French feminists who deployed techniques of power that steered ideological and political choices on each side of the two debates in the direction of support for Parité while at the same time undermining Muslim women’s choice to wear a veil and, therefore, their access to political, economic, and social goods. French feminism has a distinct intellectual lineage that does not map neatly onto developments in Anglo-­American feminism. This makes it difficult to present a clear-­cut delineation of Governance Feminism in the French context. There are also differences within feminist approaches to the veil; for example, there is a marked contrast between universalist feminists, such as Élisabeth Badinter, who favors veil prohibition, and Christine Delphy, who argues that French feminists colluded with racism by supporting veil prohibitions.10 Feminists such as Delphy, whose politics emerged out of a nineteenth-­century tradition that aligned French feminists with utopian socialism11 and an explicitly left materialist rather than liberal tradition, were less persuaded by



Governance Feminism in the French Republic

323

arguments that French feminists should align themselves with state power in order to regulate the dress codes of Muslim women. Nevertheless, as Laure Bereni notes, not all feminists on the radical left tradition were able to accommodate differences of class, race, and religion among women. Significantly, not only liberals but also more radical sections of French feminism agreed on a vision of female emancipation that was incompatible with wearing the veil.12 The dominance of universalism within the French liberal political tradition meant that French women were continuing to struggle with issues of sexual difference and political representation even as women in the United Kingdom and the United States moved on to confront the politics of racial and cultural difference, albeit with varying degrees of success. Second-­wave feminism in France, therefore, returned to debates about sexual difference at the same time that Anglo-­American feminists had already complicated sexual “difference” by relating gender to race, sexuality, and class. Political organization by black and lesbian, gay, bisexual, and transgender (LGBT) women ensured that Anglo-­American feminist elites were pushed to notice and take account of racial, cultural, and religious difference. This difference in political mobilization produced a much larger debate about their articulation within feminist theory and activism than is visible anywhere in French feminism. There is thus a marked contrast between French feminist responses to racial, cultural, and religious difference and that of Anglo-­ American feminists who are not restricted by a republican model of politics that excludes sexual and racial difference and have consequently developed a rich literature of postcolonial and hybrid feminism as a response to differences of power within the category of woman.13 Despite internal differences and notable exceptions such as Delphy, there were similarities in the general approaches that French feminists adopted in relation to the veil and Parité. French feminist Parité campaigners preferred essentialist approaches that failed to expand the representation of women by explicitly relating sexual difference to race and religion while at the same time implicitly reproducing racial stereotypes about Arab Muslim communities. Joan W. Scott has noted the challenge of including all French women within political assemblies at the moment of their creation in the late seventeenth century.14 The inability of Parité campaigners to expand the category of women to also

324

Maleiha Malik

include racial and religious difference confirms the ongoing struggle for women’s political equality in the twenty-­first century. There were some Muslim women’s organizations such as NPNS who supported Parité and also restrictions on the veil, but Muslim women, in large numbers, were opposed to bans on the veil. As Mayanthi L. Fernando notes, NPNS reproduced rather than challenged racism by reiterating rather than challenging stereotypes that Arab Muslim men are sexually violent offenders and Arab Muslim women are passive victims with no agency.15 There was no unanimous or homogenous viewpoint of Muslim women, but notable numbers of French Muslim women clearly wanted to wear the Islamic headscarf, and a smaller number of them wanted to wear the face veil in public. Yet national women’s groups in France, such as the Women’s Liberation Movement, denounced veils as a sign of subservience and fundamentalism rather than actively engaging with the viewpoint of Muslim women who chose to wear the veil.16 The process through which some “difference-­blind” French feminists became complicit in the production of laws that coerced Muslim women was subtle and complex.

French Feminists as “Proxies” for Muslim Women Since September 11, 2001 (9/11), public debates have represented European Muslim women who wear the veil as oppressed despite increasing evidence that many Muslim women in Europe were actively choosing to wear the Islamic veil.17 It is a remarkable feature of legal cases in the late twentieth and early twenty-­first century that so many European Muslim women litigated their claims to wear the veil in some of the highest European constitutional courts. Ms. Dahlab (a Swiss convert to Islam), Leyla Sahin (a young Turkish medical student), and a face veil–­wearing French woman referred to as S. A. S all litigated in the European Court of Human Rights, while Shabina Begum (a young British schoolgirl) took her case up to the U.K. Supreme Court.18 Rather than silent, oppressed, and lacking in agency, these veiled Muslim women participated in public activism to defend what they considered to be their constitutional rights, thereby confirming a high degree of intelligence and political courage rather than a need for feminist proxies to speak on their behalf.19 Moreover, recent interview-­based research with the adult French and Belgian women who wear a face veil



Governance Feminism in the French Republic

325

confirms that they chose the face veil.20 This evidence supports the analysis of Europe’s most senior women judges, such as Judge Françoise Tulkens in the Grand Chamber of the European Court of Human Rights21 and Baroness Brenda Hale in the U.K. Supreme Court,22 who have emphatically refused to base their judgments on the automatic assumption that veiling is forced on Muslim women.23 How, then, was it possible to argue that there should be legal prohibition of the veil for adult women living in European constitutional democracies? This process required the creation of a false identity for Muslim women as incapable of making choices in their own best interests that, therefore, then allowed French feminists to gain power as their proxies who could speak about veils in public debates. John Bowen has noted that the criminalization of the face veil is based on an assumption that the Muslim women who choose to wear it suffer from an “assimilation defect,” specifically a failure to be sufficiently autonomous.24 As Bowen notes, the Faiza M. decision of the French Constitutional Council argued that French citizens should be autonomous in private as well as public and, moreover, that some religious practices such as the face veil weaken this condition for autonomous citizenship. Bowen describes this attitude in the following terms: “Her [Faiza M.’s] clothes were a sign of a basic personal flaw, one that comes from holding the wrong religious views.”25 French feminists were governance feminists in the sense that they deployed governance techniques, such as their participation in statutory commissions that allowed them proximity to power and the ability to influence the production of general criminal laws. As I later argue, this was the key technique through which these feminists were able to gain power. The expert commissions such as the Stasi and Gerin Commissions were the main domains where feminist expertise was presented as an objective fact and then converted into law and state policy. Exploiting this ability to present themselves as the experts about Muslim women and the veil, rather than allowing Muslim women to speak in their own voice, French feminists relied on well-­established concepts within feminist theory to buttress their arguments for criminalizing the veil while at the same time arguing from within a feminist paradigm. They attributed “autonomy deficits” to Muslim women by implying that their choice of the veil was not a “real choice.” French

326

Maleiha Malik

feminists who were part of the movement to criminalize the face veil were governance feminists in important respects. The subtle process through which these autonomy deficits laid the ground for criminalizing the veil illustrates some of the core features of Governance Feminism discussed in this volume. As I argue below, the representation of adult Muslim women who wore the face veil as irredeemable victims incapable of individual autonomy assumed that these women were incapable of any forms of social emancipation simply because they chose the face veil in one sphere of their personal, social, and political lives. Moreover, the collusion of Parité feminists, who enjoyed greater social, political, and economic power than Muslim women, in criminalizing the face veil confirms the concern that feminist analysis can blind some powerful women from their own use of power to oppress other women. As I demonstrate in the discussion that follows, the refusal of the Gerin Commission to even “hear” a Muslim woman who wore the face veil, as well as Élisabeth Badinter’s strategy of pathologizing Muslim women who chose the face veil, is the most extreme illustration of this wider pattern. French feminists were confronted with the problem of what to do when Muslim women who wore the veil spoke out about their actual choices. The “autonomy deficits” technique deployed by French feminists was a useful solution to this problem because it created a false identity for these vocal women. For example, Gisèle Halimi, a prominent French feminist who does not wear the veil and was also involved in the Parité movement, described the veil as a sign of “imprisonment” despite clear evidence that large numbers of adult women freely chose to wear the veil. Thus, Halimi felt able to ascribe an external “true” meaning of the Islamic headscarf and face veil as a “proxy” speaking on behalf of Muslim women. Badinter is the most startling example of a feminist who deploys the “autonomy deficit” technique to speak as a proxy “on behalf of” adult Muslim women who wear the face veil rather than using her power to allow them to speak out in their own voice. Badinter gave expert testimony to the Gerin Commission that paved the way for the criminal ban on the face veil in France, stating, “So when I hear women explaining that the full veil makes them feel good and protected—­but protected from what?—­I believe that what they say is true, but I think these women are very sick and I do not think we may have to determine ourselves according to their pathology.”26



Governance Feminism in the French Republic

327

Or consider the example of feminist Caroline Fourest. In 2013, two young Muslim women, one of them pregnant, were victims of separate violent racist attacks. During these attacks, the pregnant woman was punched in the stomach. The other woman, named Rabia Bentot, was punched and kicked by perpetrators who tore off her headscarf while shouting “dirty Arab” and “dirty Muslim.” Instead of declaring sympathy for the women victims of racist violence, Fourest expressed skepticism about these women’s accounts of their own ordeal of violence. Along with NPNS, she drew on racial stereotypes about hyper-­aggressive Arab Muslim men and their passive Arab Muslim women victims. Fourest stated that Bentot was being manipulated by her father into wearing the veil and implied that Bentot may have been the victim of violence by her own family as a punishment for being an Arab Muslim girl who was living too free a lifestyle. Bentot subsequently sued Fourest for defamation, and the court held that there was no evidence to justify Fourest’s statements about the incident, Rabia Bentot, or her father. Fourest was fined 6,000 euros for the defamation of Bentot, although she has appealed this decision.27 French feminists, then, were involved in acting as proxies for Muslim women who wear the face veil. This proxy power allowed them to represent the truth about the veil even in the face of explicit contradiction by Muslim women such as Rabia Bentot. French feminists’ proxy power also allowed them to participate in state commissions that created public knowledge about the veil without significant consultation or participation by women who wore the veil. Muslim women, especially those who wore the veil, played a surprisingly limited role in the Stasi and Gerin Commissions that produced coercive national laws that had such a dramatic impact on their freedom. The Stasi Commission, for example, did not give substantive weight to the voices of the young schoolgirls who had been excluded from public schools because they wore an Islamic headscarf. Instead, they accepted without evidence that there would be public disturbances at the sight of young women wearing Islamic headscarves that were potentially destabilizing to the school environment.28 The Stasi Commission also referred to young girls being “pressured” by North African Muslim migrant men into wearing the headscarf so that permitting Islamic headscarves in public schools encouraged or enabled such male coercion. Yet no substantial evidence was put forward to justify these

328

Maleiha Malik

claims that replicated stereotypes about migrant men while simultaneously delegitimizing the actual choices of the young Muslim girls who wanted to wear the Islamic headscarf.29 Stereotypes that represented the schoolgirls as coerced into wearing the Islamic headscarf were used to justify a blanket ban even in those situations where there was clearly no coercion by men and where the women exercised free choice.30 Similarly, the Gerin Commission heard from a range of representatives, including liberals and feminists, but there was almost no consultation with the women who actually wore the face veil. One Muslim woman, Kenza Drider, wrote to the Commission to say she wanted to give evidence. She was given permission to adduce evidence, but she was also told to remove her face veil while giving evidence before the Gerin Commission.31 Because she rejected this condition, the Commission never heard her words. The failure of the Stasi and Gerin Commissions to consult widely or even impartially and respectfully with Muslim women and the subsequent use of coercive legal regulation have obscured the need to initiate wider dialogue about the Islamic headscarf and the face veil. As Ralph Grillo and Prakash Shah conclude, the current approaches impose a single normative meaning on the face veil, thereby “stifling or impeding what might otherwise be a ‘natural’ conversational and dialogical development among Muslims, and with non-­Muslims, about the significance of the face veil.”32 Such dialogical conversations, especially with and involving the Muslim women who wear the face veil, are vital to raise more critical questions about the asserted negative consequences of the face veil for women’s autonomy.33 There is as of yet insufficient evidence about the French context, but the Belgian case study of interviews with women who wear the veil confirms that the use of the criminal law without adequate consultation with Muslim women who wear the face veil has been experienced as a breach of democratic principles. Belgian Muslim women who wear the face veil insist that not only are they able to speak for themselves without the need for “feminist” proxies; they are, in fact, eager to participate in a political dialogue and in democratic processes more generally.34 Why did some French feminists choose to align themselves with political processes that excluded or marginalized Muslim women? This raises further questions. Perhaps the underlying assumption that political elites want to share power with Muslim women within



Governance Feminism in the French Republic

329

democratic institutions is itself flawed. These questions need to be put in the context of the rise of political racism and the electoral success of anti-­Islamic far-­right political parties in France that has led to shifts by conservative nationalists to reclaim the “anti-­migrant vote.”

French Feminists and the Exclusion of Racial Difference The Parité Law enacted in 2000 amended the French Constitution so that political parties were required to set gender quotas for selection of candidates for electoral parties and public office. Political parties in France now have to endorse an equal number of men and women candidates in municipal, national, and European elections, with the exception of those taking place in towns of fewer than 3,500 people. In 2011, at around the same time as the criminalization of the face veil, these quotas were extended to corporate boards when the conservative UMP government of Nicolas Sarkozy introduced a law that established a gender quota forcing large companies to reserve at least 40 percent of their boardroom positions for women within a time frame of six years. These Parité gender quotas in politics and on corporate boards have been a remarkable achievement for French feminists within a very short period of time. They give French women the opportunity for a substantially larger share of political, social, and economic power and access to a greater share of national wealth. Some prominent feminists were consistent in their opposition to accommodating sexual and racial difference. Badinter, who was forceful in her opposition to the Islamic headscarf and face veil, was also critical of recognizing sexual difference and gender quotas because she said it would open up a Pandora’s box of claims that would act as a precedent for other minorities to challenge “difference-­blind” French republicanism. Badinter stated “the argument [of parity] introduces a fatal drift in our secular and universalist Republic. This is so because the numerical argument will inevitably lead to parity claims from other communities, racial, religious, even cultural and sexual.”35 Other feminists supported Parité but opposed veiling by making crucial conceptual choices that separated out sexual difference from race, culture, and religion. These feminists insisted that there was no intellectual or political equivalent between women and other racial or religious

330

Maleiha Malik

minorities. A leading feminist text titled Politique des Sexes (1998) written by Agacinski, who led the Parité campaign, insisted on an essentialist definition of gender and sexual difference that dissociated it from other criteria such as race and religion.36 This line of reasoning insisted that gender was defined solely from the viewpoint of and based on majoritarian experiences of non-­Muslim women who shared the same racial and cultural characteristics as male political elites. The structure of this “gender-­first” approach forgoes any effort to confront the fact that, in the debates about the Islamic veil, there is more than one ground for discrimination—­that is, sex, religion, and race. It prevents wider alliances between women on campaigns that focus on structural discrimination that causes harm to all women despite racial and religious differences. Significant political resistance to a singular definition of feminism that excluded racial and religious difference did emerge. For example, in 2004, while the law banning the Islamic headscarf was being debated, women’s groups were organizing their International Women’s Day (IWD) march. The National Collective for Women’s Rights (Collectif National pour le droit de femme) coordinated women’s groups whose focus was reproductive rights, family planning, or LGBT equality. Veiled feminist activists from the One School for All Collective (Collectif Une Ecole pour Tous et Toutes, or UEPT) started to be involved in these activities. The manifesto for the demonstration neither condemned nor welcomed the ban on headscarves, but it did denounce the linkage of the Islamic veil to violence against women, leading UEPT to issue its own separate manifesto. Some feminists argued that veiled women should not be allowed to join the march, but they were challenged by the Pink Panthers, an LGBT equality group that argued that no woman should be excluded from the IWD march. UEPT feminist activists also later stated that they were denied equal access to the IWD march and were overtly insulted by other feminists who claimed that the UEPT activists should be ashamed of their claim to feminism and should go and live in Iran or Saudi Arabia. UEPT stated that they were allowed to march through the intervention of the Greens and the Pink Panthers. These types of disputes led the UEPT to found a women’s group that adopted a plural formulation of feminism in its name of Collectif Féministes (collective of feminists) rather than Collectif Féministe (feminist collective) to pluralize feminism and to bring prominent



Governance Feminism in the French Republic

331

figures such as Christine Delphy together with younger women activists, many of whom were Muslim.37 Feminist organizations and social movements such as the French advocacy-­oriented women’s rights organization Decide! supported Parité and prohibitions on the veil as part of a single-­a xis approach to gender that excluded racial politics from their campaign for women.38 Eléonore Lépinard’s research on NGOs and the women’s movement confirms that a majority of French feminist organizations favored prohibitive bans on the Islamic headscarf and the face veil. The groups that Lépinard interviewed adopted a “gender-­fi rst” analysis that allowed them to be “feminist” but to also simultaneously oppose the veil. Some among the group that Lépinard interviewed were willing to acknowledge racial and religious difference as a social reality for Muslim women and, therefore, provide them with services as individuals, policies that would require the accommodation of racial, cultural, and religious difference. Thus, despite the choice of single-­a xis modes of feminist analysis, some aspects of French feminist practice were often sensitive to the social reality of the lives of minority women,39 although other French feminists continued to support state policies that excluded women who wore the Islamic headscarf and face veil from education, the labor market, and access to political, social, and economic resources.40 French feminists thus made significant intellectual and strategic choices about how to define sexual difference in an increasingly diverse French population. These choices, in turn, ensured that debates and social movements about gender difference were cut off from those about racial difference because, as Bereni concludes, “By drawing a border between sexual and other social differences, this discourse leads to the homogenization of the category gender, and neglects the intersection of gender and other categories, such as race and ethnicity.” 41 At the same time, this French feminist exclusion of racial, cultural, and religious difference had the consequence of channeling the symbolic and material benefits of the accommodation of sexual difference to majority women who were more powerful, rather than achieving a wider redistribution of power and wealth to less powerful, socially excluded migrant women. The immediate winners of a strategy that cut off gender from race and religious difference were elite French women who were able to gain

332

Maleiha Malik

political and economic power through gender quotas. Among the losers were the small group of Muslim women who wore a veil who now faced a criminal penalty if they left their homes to enter the public sphere as well as social exclusion from the labor market and access to public goods. The face veil is worn by a very small group of women. Nevertheless, the overreach of the criminal prohibition to all public spaces rather than specific spheres such as the workplace or schools makes that prohibition especially authoritarian. There is no general ban on the Islamic headscarf in the workplace, but there is increasing evidence of overreach of the 2003 law that targeted the Islamic headscarf in schools to extend to areas such as the workplace. French law does not permit an analysis of workplace discrimination based on race data, but there is now some evidence of employment discrimination against women who wear the headscarf.42 A high-­profile legal example of this overreach of the Islamic headscarf ban is the Baby Loup case (2014) in which the French Cour de Cassation upheld the dismissal of a Muslim woman who wore the Islamic headscarf while working in a crèche because her employer argued that the workplace required religious neutrality (laicité).43 This increasing evidence of labor market discrimination suggests that Muslim women who wore the Islamic headscarf were losers not only in symbolic terms but also in a material sense because they were excluded from fair and equal access to labor markets and economic resources.

French Feminists, Nationalism, and Political Elites French feminists secured Parité by persuading political elites to support their campaign. Chirac and Sarkozy drew on republican nationalism rather than the overt racism of the far right. In the 1990s, the debates about migration and integration focused on the racial and religious difference of North African Arab and Muslim citizens, framing them as distinct minority communities. Chirac and Sarkozy drew on republicanism to develop a distinct UMP response to migration and diversity that was distinguished from the racism of the far right and also the multiculturalism associated with the Anglo-­American tradition. This positioning set the political context within which French feminists sought to advance their campaign for Parité. They did not enter into an explicit pact with French politicians or the state, but they did separate their political goals from the defense of migrant women



Governance Feminism in the French Republic

333

who wore the veil who were the targets of public criticism by powerful nationalist elites, including Chirac, Gerin, and Sarkozy. Halimi, a prominent feminist in the Parité campaign, insisted that sexual difference could be recognized and women could be included within a universalist paradigm without endangering republicanism because gender was distinct from race and ethnicity.44 At a key media event in April 1993, Parité campaigners presented their ideas to the public in terms that were free of reference to racial or religious difference and argued that the lack of women’s political participation was not only undemocratic but that it was also a disgrace for France. This positioning of Parité as a nationalist force that could strengthen national unity resonated widely. As Joan Wallach Scott notes, the nationalist aims of Parité was frequently cited by legislators.45 The feminist strategy of aligning Parité with nationalism is not surprising given the need to succeed within the context of resurgent nationalism and the rise of the anti-­Islam far right in French politics. A deeper critique by feminists of nationalist discourses or the formation of alliances in defense of minority women may have required a confrontation with nationalist political elites such as Chirac, who, after all, had led the campaign to prohibit the Islamic headscarf in schools, and Sarkozy, who led the campaign to criminalize the face veil. The support of political leaders was crucial to secure victory for the Parité and corporate board quotas campaign.46 Instead of confrontation with those who had the power to grant success for gender quotas, therefore, French feminists who campaigned for Parité chose definitions of sexual difference that allowed them to gain greater political, economic, and social power by aligning themselves with the dominant racial and cultural power structures of center-­right nationalist elites. As Claudie Bandino notes in her analysis of the strategies adopted by French feminists campaigning for Parité, “The involvement of feminist activists in the parity movement was a turning point in their relationship with political institutions. They managed to not only bind the Presidential candidates to publicly made promises, they also worked in close collaboration with politicians. Activists began to work in a reformist manner that contrasted with the past.” 47 This, in turn, paved the way for nationalist political elites to support the feminist demand for Parité and to present themselves as male champions of gender equality while at the same time using coercive state power against veiled Muslim women.

334

Maleiha Malik

Feminists played a crucial role through legitimizing exclusionary nationalism as well as more direct active involvement in the legal and political process through which nationalist and far-­right discourse was transformed into coercive law and policy aimed at Muslim women. The prohibition and criminalization of Muslim women’s dress was achieved by the intervention of powerful political elites who were supported by some feminists within mainstream democratic and constitutional processes. For example, the public controversy over the Islamic headscarf had become less intense until the intervention of elites like Jacques Chirac and the Stasi Commission, who provided the momentum for legal prohibitions.48 Likewise, there were popular anxieties about the face veil, but criminalization was proposed only after the intervention of Eric Besson, who was a UMP minister for immigration, integration, and national identity, and André Gerin, who was a Communist deputy in the French National Assembly.49 In July 2008, a housing authority in Vénnisieux, Lyon (which has a large Muslim population), refused to allow Faiza M. and her family to rent a house because she wore a face veil.50 This incident was reported in Le Monde in 2009.51 André Gerin, who was former mayor of Vénissieux, then publicized the issue of the face veil in April 2009. Nicolas Sarkozy set up a commission led by Gerin and also spoke out against the face veil in the French Assembly even before the Gerin Commission had reported. Although Gerin, a communist, had a very different political stance on a range of other issues compared with Sarkozy, who was a center-­right politician, both politicians exercised their political power to reinforce majoritarian nationalism by excluding Muslim women from wearing the face veil. Feminists who opposed the face veil were aligning themselves with powerful mainstream political elites, such as Eric Besson, Andre Gerin, and Nicolas Sarkozy, whose political interventions in turn played a crucial role in translating anxieties about the face veils into national criminal law. In 2010–­11, gender quotas on corporate boards were proposed just as French political elites, feminists, and the far right were mobilizing to use the criminal law to ban the face veil. It is difficult to establish the motivation of conservative nationalists who supported gender quotas despite their incompatibility with “difference-­blind” republican values and their otherwise conservative attitudes to other gender issues, such as same-­sex marriage. Nevertheless, one consequence of



Governance Feminism in the French Republic

335

UMP support for feminists and Parité was that it allowed conservative nationalists to position themselves as “champions of gender equality” without sharing power with migrants by accommodating racial or religious difference. This strategy also had the further advantage of reinforcing a contrast between a “civilized us” and a “barbaric them” in the face of racial and religious difference. Support for gender quotas on corporate boards also allowed conservative nationalists to emerge as more “civilized” because of their treatment of “French” women as compared with Muslim men, who forced barbaric veils on “their women.” Jean-­François Copé, a high-­profile UMP political leader who subsequently led the public demonstrations against same-­sex marriage during 2013, acknowledged this connection by justifying his support for gender quotas in a public speech, stating, “The test of a society’s civilization is in how it treats its women.”52 As Darren Rosenblum and Daria Roithmayr note in relation to this seeming contradiction of conservative nationalist support for gender quotas, by “modernizing the corporate boardroom to include women, conservatives could more comfortably take a position against ‘backward’ practices such as traditional Muslim dress.”53 Support for gender quotas for French women who were from the dominant racial, cultural, and religious groups thus acted as a legitimating discourse for increasingly authoritarian state policies against a small minority of women who wore the Islamic headscarf and face veil. My argument is not that there was a conscious or an explicit causal connection between the two discourses of Parité and the veil. Rather, I want to draw attention to the striking fact that feminists who supported Parité were able to align themselves with men in power by making key intellectual and strategic choices that distanced their political campaigns from women lobbying for racial and religious equality. It is not surprising that conservative nationalist politicians should have made a compromise that ensured the exclusion of racial and religious minorities but that shared their power with majority-­white French women with whom they shared a dominant racial and religious culture. After all, it will be their wives and daughters who run for and attain public office and who occupy profitable seats on corporate boards. What is more surprising is the complicity of French feminists and the Parité movement in making this trade-­off between, on the one hand, the interests of majority

336

Maleiha Malik

women for gender quotas that ensured a larger share of political, economic, and social power and, on the other hand, the introduction of prohibitions on the veil that increased the political and socioeconomic marginalization of Muslim women.

French Feminists and the Far Right French feminists who aligned themselves with powerful political elites such as UMP politicians Sarkozy and Copé were operating in domestic and international contexts in which French identity was increasingly being defined in opposition to Muslims and Islam.54 Joan Wallach Scott has noted that as early as the 1980s, international political events such as the Iranian revolution played a significant role in creating public anxiety about the increasing visibility of the Islamic headscarf.55 Following 9/11 and the July 7, 2005 (7/7) bombings in London, this popular anxiety was more explicitly focused on the visibility of Islam and Muslims in the European public sphere. This shift contributed to the racialized representation of Muslim religious and cultural practices as pathological and barbaric.56 At an international level, the war on terror has focused on Muslim women as the justification for the use of state violence in countries such as Afghanistan or Iraq, with the face veil featuring as a recurring image of the legitimizing discourse of politicians such as George W. Bush and Tony Blair to justify these invasions.57 Images of the veil, especially the face veil, were particularly important as part of the war propaganda because they were associated with the Taliban, who were targets for military intervention in Afghanistan.58 Cultural racism against Muslims has hardened into political racism based on an anti-­Islam ideology and has been adopted by far-­right political parties throughout Europe. This anti-­Islam far-­right politics now extends from the Danish People’s Party and Geert Wilders’s Freedom Party in the Netherlands, which were until recently part of ruling coalition governments, through to the Front National, which has become a major electoral player in French politics. All European far-­ right parties including France’s Front National have adopted some form of anti-­Islam ideology.59 France’s Front National, in particular, made the earliest shift in the late 1980s from a far-­right discourse that focused on race and ethnicity to one that emphasized a “clash of civilizations” between Europe and Islam.60



Governance Feminism in the French Republic

337

The post-­9/11 and 7/7 context and the rise of anti-­Islam far-­right ideologies have brought an intense focus on Muslim women. Muslim men’s treatment of “their” women is treated as a sign of their backwardness and barbarity as compared with the “modern” values of gender equality.61 At the same time, Muslim women are represented as an aggressive threat because of their refusal to adapt themselves to modernity and their insistence on wearing religious symbols such as the Islamic headscarf and the face veil. This paradoxical representation of Muslim women as victims of patriarchy but also—­simultaneously—­as aggressive symbols of radical Islam is not only a feature of popular media representation. As Carolyn Evans has demonstrated, this paradoxical representation has also influenced the legal reasoning of the European Court of Human Rights in the headscarf cases.62 Thus, even European human rights law has not been immune from the absorption of cultural racism and anti-­Islam ideology.63 It is true that far-­right political parties such as Front National and organized racists have played an important role in creating and disseminating anti-­Islam ideology that has increasingly focused on presenting the veil as a symbol of Islamic barbarism. Yet it would be wrong to assume that the criminalization of the face veil has its sole origin in far-­right ideology. As I argued earlier, the center-­right nationalist elites and Parité feminists played a crucial role in the momentum that led to the legal prohibitions on the Islamic headscarf and face veil. This was made possible through direct involvement but also through a more subtle process in which far-­right discourse becomes mainstreamed when core aspects of it are replicated rather than challenged by respectable political actors, such as feminist and conservative politicians. Pnina Webner identifies this process of mainstreaming by noticing that a crucial feature of racism against Muslims is the use of anti-­fundamentalist images that provide racists with a legitimizing discourse against Muslims, that then are deployed by more centrist intellectual elites as well as by “real” racists.64 French feminists such as Badinter and Fourest, as well as the feminists who campaigned for Parité, such as Halimi, who described the veil as “the flag of fundamentalism,” and some strands of the French left need to be understood in the context of Webner’s insight that intellectual elites provide a legitimizing discourse for racism. I am not aware of any explicit alliances between feminists and the far right. Yet

338

Maleiha Malik

at the same time, it is precisely because feminism is a respected intellectual frame in French politics that feminist viewpoints about veils were able to legitimate far right and conservative regulation of Muslim women’s dress.65 Some feminists, such as Delphy, who drew their ideas from a left materialist tradition, challenged rather than replicated this legitimizing discourse and resisted bans on the veil, confirming that there was political leadership for those French feminists who wanted to oppose the anti-­Islam ideology of the far right Front National. This put the option of an alternative political strategy clearly before the Parité feminists. Yet prominent French feminists such as Badinter and Fourest, including those who were leading the Parité movement such as Halimi, acted as the complicit intellectual elites who legitimized racism by mainstreaming rather than challenging the far-­right framing of the veil worn by a small minority of Muslim women. In retrospect, the symbiotic process in which French feminist ideas about the veil mirrored far-­right discourse and vice versa suggests the slow appropriation of far-­right populist nationalism into some strands of French feminism, even if this collusion may have been difficult to discern at the time that events were unfolding.66 In a mutually reinforcing process, French feminists absorbed, reflected, and also legitimized the ideological transformations within French racism that have shifted away from color-­based racism to focus on the religious culture of Muslims as a threat to European Enlightenment values, such as free speech and gender equality.67 French feminist representations of Muslim women’s dress as barbaric legitimized the views of the far right as compatible with the goals of feminism and thereby contributed to the process through which the anti-­Muslim racism of the Front National was mainstreamed into French politics.

Conclusion Looking beyond the small number of Muslim women who wear the veil, and the knock-­on deleterious effects of the bans on other Muslim women and disadvantaged Muslim minorities generally, the intellectual, public, and political debates about Parité and the veil have been a missed opportunity to re-­theorize sexual difference in the French republic. At first sight, it may seem that a majority of French women are



Governance Feminism in the French Republic

339

winners because they now have gender quotas that allow them a greater share of political, economic, and social power. Yet it may also be premature to assume that Parité was a victory for the majority of French women who do not wear the Islamic headscarf or face veil. French feminists made a strategic choice to define gender in binary-­essentialist terms that excluded racial and religious difference. The events surrounding the International Women’s Day march in 2004 illustrate that these conceptual choices had negative consequences in the marginalization of Muslim women during a key period, when they were vulnerable to state coercion, even if one positive consequence was a new, oppositional solidarity among LGBT groups, Greens, and younger Muslim feminists. Support by powerful feminist Parité campaigners for Muslim women who were confronting state coercion, nationalist exclusion, and far-­right racism may have enabled a valuable opportunity to include a larger group of women within an inclusive feminist movement for social change.68 Treating gender as unique in comparison with other social differences such as race or religion allowed feminist elites to create a cordon sanitaire around Parité that cut off their campaign from the politics of race, minority rights, and migration. It reinforced dominant discourses and power relationships in a process that has made it more difficult to realize the long-­term goals of a more substantial transformation of politics, society, and the economy during a period of economic restructuring and public-­sector cuts in France.69 This strategy not only sacrifices the interests of Muslim women who wear the Islamic headscarf and face veil; it has also constrained the ambition of feminist politics for all French women. French feminists campaigning for Parité may have won an immediate success by aligning with majoritarian nationalist political elites, but this may turn out to be a Pyrrhic victory vis-­à-­v is the long-­term goals of French feminism.70

Notes 1. Joan Wallach Scott, Parite! Sexual Equality and the Crisis of French Universalism (Chicago: University of Chicago Press, 2005). 2. Erik Bleich, “The French Model: Color-­Blind Integration,” in Color Lines: Affirmative Action, Immigration and Civil Rights Options for America, ed. John David Skrentny (Chicago: University of Chicago Press, 2001), 270–­97.

340

Maleiha Malik

3. Patrick Simon of the Institut National d’Etudes Demographiques, in his analysis of labor market data, has estimated that the Islamic headscarf ban had impacts beyond schools because it also had a negative impact on access to employment for those women who wear the headscarf. Interview by Maleiha Malik, November 28, 2014, Grammars of Equality Workshop, University of Nanterre, France. 4. The full title of the law is Loi no 2004-­228 du 15 mars 2004 encadrant, en application du principe de laïcité, le port de signes ou de tenues manifestant une appartenance religieuse dans les écoles, collèges et lycées publics (Law No. 2004-­228 of March 15, 2004, concerning, as an application of the principle of the separation of church and state, the wearing of symbols or garb which show religious affiliation in public primary and secondary schools). 5. Joan Wallach Scott, The Politics of the Veil (Princeton, N.J.: Princeton University Press, 2007). 6. Malcom Cook and Grace Davie, eds., Modern France: Society in Transition (London: Routledge, 1998), 208. 7. Nusrat Choudhry, “From the Stasi Commission to the European Court of Human Rights: L’affaire du Foulard and the Challenge of Protecting the Rights of Muslim Girls,” Columbia Journal of Gender and Law 16, no. 1 (2007): 203. 8. John R. Bowen, “How the French State Justifies Controlling Muslim Bodies: From Harm-­Based to Values-­Based Reasoning,” Social Research 2 (2011): 325–­48. 9. Elisabeth G. Sledziewski, The Democratic Principle of Equal Representation: Forty Years of Council of Europe Activity: Proceedings of the Seminar at Strasbourg, November 6 and 7, 1989 (Strasbourg: Council of Europe Press, 1989). 10. Christine Delphy, Separate and Dominate: Feminism and Racism after the War on Terror (London: Verso, 2015). 11. Claire Goldberg Moses, French Feminism in the Nineteenth Century (Albany: State University of New York Press, 1995). 12. Laure Bereni, “Accounting for French Feminism’s Blindness to Difference: The Inescapable Legacy of Universalism,” paper presented at Feminism/s without Borders: Perspectives from France and the United States, New York University, October 16, 2009. 13. Ibid. 14. Scott, Parite! 15. Mayanthi L. Fernando, The Republic Unsettled: Muslim French and the Contradictions of Secularism (Durham, N.C.: Duke University Press, 2014), 197. 16. John R. Bowen, Why the French Don’t Like Headscarves: Islam, the State, and Public Space (Princeton, N.J.: Princeton University Press, 2008), 208–­10. 17. Lila Abu-­Lughod, Do Muslim Women Need Saving? (Cambridge, Mass.: Harvard University Press, 2013); Leila Ahmed, A Quiet Revolution: The Veil’s Resurgence, from the Middle East to America (New Haven, Conn.: Yale University Press, 2011). 18. Dahlab v. Switzerland, Application No. 42393/98 (2001); R v. Headteacher and Governors of Denbigh High School (Ex Parte Shabina Begum), UKHL15 (2006); Leyla Sahin v. Turkey, Application No. 44774/98 (1998); S.A.S. v. France, Application No. 43835/11 (2014).



Governance Feminism in the French Republic

341

19. Carolyn Evans, “The ‘Islamic Scarf’ in the European Court of Human Rights,” Melbourne Journal of International Law 7, no. 1 (2006): 52–­73. 20. Yaiza Janssens Eva Brems, Kim Lecoyer, Saïla Ouald Chaib, Victoria Vandersteen, and Jogchum Vrielink, “The Belgian ‘Burqa Ban’ Confronted with Insider Realities,” in The Experiences of Face Veil Wearers in Europe and the Law, ed. Eva Brems (Cambridge: Cambridge University Press, 2014), 77–­115. 21. Leyla Sahin v. Turkey, Application No. 44774/98. See Judge Tulken’s analysis from para. 12 onward. 22. R v. Headteacher and Governors of Denbigh High School (Ex Parte Shabina Begum); Brems et al., “The Belgian ‘Burqa Ban’ Confronted with Insider Realities.” 23. Eva Brems, ed., The Experiences of Face Veils Wearers in Europe and the Law (Cambridge: Cambridge University Press, 2014). 24. Bowen, “How the French State Justifies Controlling Muslim Bodies,” 343. 25. Ibid., 347. 26. Susanna Mancini, “Patriarchy as the Exclusive Domain of the Other: The Veil Controversy, False Projection and Cultural Racism,” International Journal of Constitutional Law 10, no. 2 (2012): 421. 27. Bob Pitt, “Caroline Fourest Fined €6000 for Defaming Young Muslim Victim of Racist Attack,” Islamophobia Watch, October 26, 2014, http://www.islamopho​ bi​ a watch.co.uk/caroline-fourest-fined-e6000-for-defaming-young-muslim​ -victim-of-racist-attack/. 28. Choudhry, “From the Stasi Commission to the European Court of Human Rights.” 29. Ibid. 30. Maleiha Malik, “Complex Equality: Muslim Women and the Headscarf,” Droit et Societe, Revue Internationale de Theorie du Droit et de Sociologie Juridique 68, no. 1 (2008): 127–­52. 31. Stuart Weir, “We Must Let Muslim Women Who Wear the Veil Speak for Themselves,” Open Democracy, April 12, 2011, https://www.opendemocracy.net​ /ourkingdom/stuart-weir/we-must-let-muslim-women-who-wear-veil-speak​ -for-themselves. 32. Ralph Grillo and Prakash Shah, “Reasons to Ban? The Anti-­Burqa Movement in Western Europe” (MMG Working Paper 12-­05) (Germany: Max Planck Institute for the Study of Religious and Ethnic Diversity, 2012). 33. Eva Brems, “The Belgian ‘Burqa Ban’ Confronted with Insider Realities.” 34. Ibid. 35. Laure Bereni, “French Feminists Renegotiate Republican Universalism: The Gender Parity Campaign,” French Politics 5 (2007): 204. 36. Sylviane Agacinski, Politique des Sexes: Précédé de Mise au Point sur la Mixité (Paris: Points, 2009). 37. Fernando, Republic Unsettled, 183–­84. 38. Eleonore Lépinard, “Doing Intersectionality: Repertoires of Feminist Practices in France and Canada,” Gender and Society 28, no. 6 (2014): 877–­903. 39. Eleonore Lépinard, “Impossible Intersectionality? French Feminists and the Struggle for Inclusion,” Politics and Gender 10, no. 1 (2014): 124–­30. 40. Lépinard, “Doing Intersectionality.”

342

Maleiha Malik

41. Bereni, “French Feminists Renegotiate Republican Universalism.” 42. Simon, interview. 43. Case Reference: Arrêt n° 612 du 25 juin 2014 (13-­28.369)—­Cour de cassation; Stephanie Berry, “Eroding Religious Freedom Step by Step: France and the Baby Loup Case,” Blog of the European Journal of International Law, July 1, 2014, https://www​ .ejiltalk.org/eroding-religious-freedom-step-by-step-france-and-the-baby-loup​ -case/. 44. Bereni, “French Feminists Renegotiate Republican Universalism.” 45. Scott, Parite!, 84. 46. Claudie Bandino, “Gendering the Republican System: Debates in Women’s Political Representation in France,” in State Feminism and Political Representation, ed. Joni Lovenduski (Cambridge: Cambridge University Press, 2005), 102. 47. Ibid. 48. Choudhry, “From the Stasi Commission to the European Court of Human Rights.” 49. Maleiha Malik, “The Return of a Persecuting Society? Criminalizing Facial Veils in Europe,” in Brems, Experiences of Face Veils Wearers, 232–­50; Bowen, “How the French State Justifies Controlling Muslim Bodies.” 50. Malik, “The Return of a Persecuting Society?” 51. “Un logement social refusé pour cause de port de la burqa, “ Le Monde, April 8, 2009, https://www.lemonde.fr/societe/article/2009/04/08/un-logement-social-refuse​ -pour-cause-de-port-de-la-burqa_1178050_3224.html.  52. Darren Rosenblum and Daria Roithmayr, “More Than a Woman: Insights into Corporate Governance after the French Sex Quota” (USC Law Legal Studies Paper no. 14-­35, 2014), 8. 53. Ibid. 54. Hans-­Georg Betz and Susi Meret, “Revisiting Lepanto: The Political Mobilisation against Islam in Contemporary Western Europe,” in Anti-­Muslim Prejudice in the West—­Past and Present, ed. Maleiha Malik (London: Routledge, 2008), 313–­34. 55. Scott, The Politics of the Veil. 56. Maleiha Malik, “Introduction,” in Malik, Anti-­Muslim Prejudice in the West. 1–­7. 57. “M. Malik Book Review of Siobhain Mullally, Gender, Culture and Human Rights: Reclaiming Universalism,” European Human Rights Law Review 6 (2006): 761–­6 4. 58. Charles Hirschkind and Saba Mahmood, “Feminism, the Taliban, and Politics of Counter-­Insurgency,” Anthropology Quarterly 75, no. 2 (2002): 339–­54. 59. Maleiha Malik, “Review of Martha Nussbaum’s ‘The New Religious Intolerance,’” Times Higher Education Supplement, April 26, 2012, 12–­14. 60. Meret, “Revisiting Lepanto.” 61. Maleiha Malik, “Feminism and Its ‘Other’: Female Autonomy in an Age of Religious Difference,” Cardozo Law Review 30, no. 6 (2009): 2613–­628. 62. Dahlab v Switzerland, Application No. 42393/98; Leyla Sahin v. Turkey, Application No. 44774/98; Malik, “Complex Equality.” 63. S.A.S. v. France, Application No. 43835/11.



Governance Feminism in the French Republic

343

64. Pnina Webner, “Islamophobia: Incitement to Racial Hatred—­Legislating for a New Fear?,” Anthropology Today 21, no. 5 (2005): 5–­9. 65. Maxim Silverman, Deconstructing the Nation: Immigration, Racism and Citizenship in Modern France (London: Routledge, 1992). See discussion of feminists and the far-­right discourse on 115–­18. 66. Ibid., 115–­17. 67. Meret, “Revisiting Lepanto.” 68. Bereni, “French Feminists Renegotiate Republican Universalism,” 204. 69. Rosemblum and Roithmayr, “More Than a Woman,” 7. 70. Ibid.

C H A P T E R 14

Gay Governance A Queer Critique AEYAL GROSS

Since the beginning of the twenty-­first century, a dramatic change has taken place in some countries, involving a shift from a depiction of the homosexual as a threat to the nation (manifest, inter alia, in a widespread objection to gays serving in the military),1 to a notion of homosexuals as an integral part of the citizenship and part of what serves to brand a state (both internally and externally) as liberal and democratic. This process has partly been captured in the discussion of “homonationalism,” which Jasbir Puar describes as “nationalist homonormativity.” In its framework, “domesticated” gay entities provide ammunition for the strengthening of the nationalist project.2 Another aspect deals with “pinkwashing,” referring to states (especially, but not exclusively, Israel) using lesbian, gay, bisexual, and transgender (LGBT) rights in public diplomacy and for propaganda purposes, after state acceptability of homosexuality became a marker of liberalism.3 These changes are also related to the different ways gay and lesbian groups address the state. In the past, many gay advocates had not viewed the state as a source of rights or support but as an adversary responsible for their oppression. As David Paternotte, Manon Tremblay, and Carol Johnson note, these advocates therefore opted for community-­building activities and a critique of institutions, such as the family. Over time, however, the relationship between gay activists and the state has changed. At least in some Western countries, activists systematically address the state, viewing it as a key tool and as an ally in the transformation of gender and sexual relationships through 344



Gay Governance

345

rights and politics, increasingly collaborating with it, and at times becoming part of it.4 Obviously, this is not the case everywhere, nor does it imply that LGBT people enjoy full equality in all, or even most, Western countries. Indeed, in some countries, state-­sponsored homo­ phobia continues to be prevalent and is even reinforced. Thus, we should recall Kevin Moss’s warning that much of the debate about homonationalism focuses on Western Europe and “its colonial/Oriental other.”5 It is thus irrelevant to much of Central and Eastern Europe, where “good old-­fashioned heteronationalism continues to flourish.” 6 The discussion in this chapter will be limited to contexts wherein the noted processes of states embracing the LGBT cause have occurred, at least to some degree. Complex questions have emerged as a result of these processes at both the national and global level. The changes discussed here in the relationship between LGBT rights and the state are typified by the appropriation of LGBT rights as a hallmark of liberalism and modernity.7 This chapter considers various manifestations of this change and develops an analysis of a phenomenon that, following the analysis of Governance Feminism in this book and elsewhere,8 I call “gay governance.” Referencing Foucault’s idea of governmentality,9 Janet Halley, Prabha Kotiswaran, Rachel Rebouche, and Hila Shamir describe Governance Feminism as every form in which feminists and feminist ideas exert a governing will within human affairs: to follow Michel Foucault’s definition of governmentality, every form in which feminists and feminist ideas “conduct the conduct of men.” And of course that does not include only male human beings but all of us, and not only all human affairs but also human-­inflected processes. . . . We wish this book could address the full range of GF efforts, but . . . we have granted ourselves license to address only a subset of them: here, we concentrate on efforts feminists have made to become incorporated into state, state-­like, and state-­affiliated power.10

Following this definition and this focus, I examine in this chapter “gay governance,” meaning the forms whereby LGBT people and ideas get incorporated into state, state-­like, and state-­affiliated power.

346

Aeyal Gross

As the discussion will show, gay governance is apparent in various practices—­government funding for LGBT organizations and involvement in LGBT events, such as LGBT pride parades; LGBT advocacy of policies and laws that may lead to increased carcerality by the state in the name of protection for LGBT people; and global export of LGBT rights, including a threat of financial sanctions to states failing to comply with adoption of these rights, known as “gay conditionality.” These three examples of gay governance, in the occurrences discussed in this chapter, correlate with governance at the municipal, national, and global levels, respectively. They are thus a part of the effects of homonationalism but also of what I call homomunicipalism and what we may perhaps call an attempt at homoglobalism. Homoglobalism is apparent in the growing, even if still limited, engagement of international human rights law with sexuality rights in the legal and advocacy discourse conducted within the UN and within international financial institutions.11 As the analysis will show, however, the national level mediates between the municipal and global levels of gay governance. In the discussion, I will address how gay governance “trickles down” from the national to the municipal level (as, for example, in the Israeli case) but also “simmers up” from the national to the global level (as in the American and British cases). I am not arguing that the national level is necessarily the baseline, but only that it does play a significant role even when practices are implemented at the municipal or global levels, which should not be viewed as completely detached from the national level. In addition to the examples cited, the expanding recognition of same-­sex marriage in some countries is also part of the state’s growing adoption of gay rights. In turn, this process serves as part of gay governance, both globally, in the attempt to “export” same-­sex marriage as part of a rights agenda, and nationally, given that one of its effects may be the growing regulation and normalization of same-­sex relationships, now under state auspices.12 Many questions can be asked about the emergence of gay governance: is it always a form of co-­optation to be rejected, or can it do good by empowering people, reducing persecution, and increasing equality and freedom? The purpose of this chapter is, first, to identify the emergence of gay governance and then to inquire into both its costs and benefits. Gay governance may do the good things described above



Gay Governance

347

but may often do harm if, as examples that will be discussed show, it prioritizes gay rights over others, that is, if promoting gay rights comes at the expense of Palestinian rights or of health rights in Uganda, or if it leads to more incarceration in a way that expands the oppression of racial minorities and poor people. The queer critique offered in this chapter aims to shift the discussion from the protection of a certain identity to questions of opposing hierarchies and structures of power around sexuality as well as other axes, so as to explore who benefits and who loses from gay governance. It will also point out how gay governance can be part of the solution but also part of the problem, possibly leading to a more rigorous inquiry into the costs and benefits involved when governments at the local, national, or global levels become part of the struggle for LGBT equality. The chapter proceeds as follows. First, I discuss manifestations of gay governance at the national level, considering gay governance in the United States and homonationalism in Israel. Next, I shift to the municipal level, focusing on Israel and specifically on Tel Aviv, discussing homomunicipalism but also considering the coalescence of national and local gay governance. Then, I deal with global gay governance, both through a discussion of U.S. and U.K. advocacy and then through a discussion of the UN level, pointing to the link between the rise of global gay governance and the growing turn to international LGBT human rights. Finally, in the conclusion, I point to the promises and perils of the changes described and to the dilemmas for progressive politics created by the changes in the relationship between homosexuality and the state.

National Gay Governance United States: Hate Crimes In 2009, the U.S. Congress passed the Matthew Shepard and James Byrd Hate Crimes Prevention Act,13 which expanded the federal hate crime law to include crimes motivated by the victim’s gender, sexual orientation, or gender identity. Some LGBT rights groups advocated for this legislation and heralded it as a victory for LGBT rights given that it enables the state (and, in the U.S. context, especially the federal government 14) to offer greater protection to LGBT people. Some queer

348

Aeyal Gross

groups, however, voiced strong reservations about this legislation. Queer groups argued that hate crimes legislation increases the power and strength of the prison system by detaining more people for longer periods of time; that trans people, people of color, and other marginalized groups are disproportionality incarcerated to an overwhelming degree; and that hate crime legislation is a liberal way of being “tough on crime” while building up the power of the police, prosecutors, and prison guards. Rather than addressing systems of violence, such as economic exploitation or police brutality, it was argued, politicians use hate crimes legislation as their stamp of approval on “social issues,” setting up the state as protector and thus deflecting attention from the violence it perpetuates, deploys, and sanctions.15 Hate crime legislation, then, is one version of national gay governance that was targeted for criticism by queer activists. Hate crimes legislation came to be considered an essential marker of progress in LGBT rights,16 forming part of what Sarah Lamble calls “queer investments in punishment.” The description denotes a process whereby LGBT communities measure their citizenship status, at least partly, on whether the state is willing to imprison other people on their behalf. Lesbian and gay rights discourse thus shifted from critiques of the carceral state toward a growing desire for punitive politics.17

Israel: Homonationalism, Pinkwashing, and the “Deal” Israel is another interesting context for discussing national gay governance.18 First, it is vital to recognize the discrepancy between Israel’s image as a liberal democracy and the fact that Israel does not easily fit this model. The role of LGBT people and their appropriation by Israeli public diplomacy should be viewed through this perspective. Excluding the Occupied Palestinian Territories (oPt), Israel has universal franchise, basic civil rights, and a functioning independent judiciary, leading many to consider it a liberal democracy. Without delving into the many problems of Israeli democracy, it is still important to note a range of factors that undermine its basic tenets, including—­in the context of the oPt—­consent of the governed, free elections, and civic equality. Many would argue that the regime currently governing Israel, and notably the oPt, allocates rights on an ethnic rather than a civic basis, and that any analysis that excludes this fact is flawed. The long-­term military occupation of the oPt has involved severe



Gay Governance

349

dispossession and discrimination of the civilian population under Israeli rule.19 Scholars have pointed to the incompatibility of liberal democracy with the Israeli model, not only because of its control of the oPt but also due to the ethnic nature of the regime within the Green Line (not including the oPt). Israel is constitutionally defined as a “Jewish state.” This characterization and especially its land regime have led some to describe it as an “ethnic democracy”20 or, for those who hold this to be an oxymoron, as an “ethnocracy.”21 The role played by gay rights in the effort to position and brand Israel as a liberal democracy must be understood against this backdrop as well as in light of the criticism of Israel’s human rights policy. For several years, gay rights have played a central role in the branding of Israel as a liberal democracy, both domestically and internationally. Since the end of the 1990s, the Israeli Foreign Ministry and Israeli consulates have been using gay rights for public relations purposes, a well-­documented practice that has only intensified in recent years.22 Over the years, this practice has included the publication of official brochures by the Foreign Ministry detailing gay rights in Israel23 and activities organized by pro-­Israel lobby groups that make explicit use of the gay cause in an attempt to improve Israel’s global public standing. The strategy behind these moves is to address subjects other than the Israeli–­Palestinian conflict, and particularly the gay cause, to generate backing for Israel among liberals who tend to support the Palestinians and whose exposure to the gay issue could help to improve Israel’s international image.24 The Israeli Foreign Ministry is also involved in these efforts, seeking to recruit the gay community in promoting Israel25 on the one hand and disparaging Iran on the other.26 The Israeli government’s investment in the gay tourism campaign27 is prime evidence of the state’s use of the gay cause in its branding endeavor. Instances of this phenomenon are Prime Minister Benjamin Netanyahu’s speeches before the UN General Assembly in 2009 and 2014, when he spoke of the persecution of homosexuals in Iran,28 and a similar statement he made following the Gaza flotilla incident, where the Israeli army killed nine people when intercepting boats aiming to break the Gaza siege.29 In the latter, Netanyahu urged peace activists to “go to the places where they oppress women. Go to the places where they hang homosexuals in town squares and deny the rights of

350

Aeyal Gross

minorities. . . . Go to Teheran. Go to Gaza. . . . Anyone for whom human rights are truly important needs to support liberal democratic Israel.”30 These and other examples are compelling illustrations of the attempt to use LGBT (and women’s) rights as a fig leaf for Israeli democracy, to steer debate away from Israel’s human rights violations in the oPt and present it as a liberal democracy in contrast to its neighbors, particularly the Palestinians and Iran. At the global discourse level, these efforts are also aimed at justifying the war on terror: they seek to divide the world into “enlightened” and “primitive,” with gay rights functioning as one of the parameters of this distinction.31 In recent years, the use of gay rights has intensified and become more coordinated while also attracting greater attention—­as well as counteractivism—­at the international level, where it has been labeled “pinkwashing.”32 It has also been more broadly addressed within the discussion of homonationalism.33 In this respect, Israel’s appropriation of LGBT rights is part of a broader global phenomenon. An example of this strategy’s success is an op-­ed published in the leading gay publication The Advocate. The author argues that, “regardless of what happened in 1948 and whether or not the Palestinians have any validity in their argument about state sovereignty, etc.,” Americans, and particularly the LGBT community, “need” Israel and should support it because of its human rights record, and especially its gay rights record, which is uniquely commendable, given that Israel is “surrounded by countries such as Iran, where homosexuality is punishable by death.”34 I refer to this process as appropriation because the state co-­opts rights that the gay community in Israel attained mostly through court proceedings against representatives of the state’s executive branch. Thus, the executive branch takes credit for rights it actually resisted in court. Although the judiciary is a branch of the state apparatus, the executive branch is the one that boasts of achievements and rights it opposed. Some LGBT individuals and groups are of course complicit, at times actively so, in what may be seen as a “deal” between the various parties. An unwritten deal, which is part of the development of gay governance, took shape over the years between some representatives of the LGBT community and both the national establishment and the municipal Tel Aviv one. The deal states that, in exchange for their donning a normative face, community representatives would be guaranteed



Gay Governance

351

a measure of support from the state. The question that emerges is this: Who benefits from this deal, and who loses out, and at what cost?35 Presumably, while such a “deal” can accord greater recognition and legitimacy to the more normative segments of the LGBT community, it may prove more costly for others, who “fit in” less well.36 For example, emphasizing army service by gay people as a mark of citizenship entitling them to equal rights reinforces the citizenship–­military service link at the expense of those who find mandatory service harder for political or health reasons. Moreover, military service excludes Palestinian citizens of Israel (who do not serve at all) and has a detrimental effect on women (whose service is considered inferior).37 Part of the answer to the “who benefits” question relates to the benefits accruing not only to some parts of the Israeli LGBT community at the expense of others but also to politicians, in what I call domestic (internal) pinkwashing that brands Israel not only internationally but also them domestically as “liberal.” This branding as “liberal” via the LGBT rights issue, of Israel internationally and of some politicians domestically, may accord them a legitimacy that will enable their ongoing violations of others’ rights.

Homomunicipalism and Local Gay Governance Although there has been much discussion of homonationalism in recent years, local governance is a largely overlooked form of gay governance. Yishai Blank and Issi Rosen-­Zvi, however, have pointed to what they called the “localization of sexuality” in the United States, a term denoting that local governments have become major loci of decisions on a multitude of issues with particular impact on the lives of gays and lesbians.38 As the discussion in this section shows, the localization of sexuality may go beyond policy and legal decision-­making at the local level to the development of what I have called homomunicipalism: a form of gay governance that, alongside recognition and visibility of LGBT culture, has effects similar to those associated with homonationalism. A number of developments at the municipal level in Tel Aviv, connected to the developments at the national level already discussed, are part of these processes. In 1999, the Tel Aviv municipality became a sponsor of the gay pride parade and, subsequently, became its

352

Aeyal Gross

principal organizer. Gay participation in both the state and municipal apparatuses may be considered manifestations of gay governance and homonationalism but, as this section shows, municipal governance may also be part of gay governance. The shift from a community grassroots activity to an event organized by the municipal government is part of what makes the current LGBT pride parade a part of gay governance.39 The municipality’s support for the gay community reached a peak with the opening of the LGBT Community Center, which closely coordinates relationships between the municipal and the LGBT community establishments. Founded in 2008 and run by the municipality, some view the Center as a symbol of the municipal establishment’s appropriation of the LGBT community,40 as a place enjoying support from the municipality and access to its resources, working closely with the community organizations that collaborate with the Center. The story of Independence Park and the adjacent Hilton Beach is a good illustration of the city–­LGBT community relationships. In 2009, queer activists in Tel Aviv objected to the renovation of Independence Park, which had long served as a major gay cruising area. The park lost its secluded shadowed corners and became a brightly lit expanse suitable for families. A gay council member who is the mayor’s liaison to the LGBT community rejected this criticism, pointing out that public cruising areas are a matter of the past.41 Though this is seemingly a small incident, it highlights the conflict between gay governance, which represents a more “respectable” politics, and queer life. Near that park is Tel Aviv’s gay beach, known as the Hilton Beach because of its proximity to the hotel. This beach has been serving the gay community for many years, and since 2012, the city has been organizing events on Hilton Beach during the gay pride annual parade, which, as noted, it has supported at least since 1999. These events, however, are more geared to the global gay party circuit, a crowd that is far more uniform regarding class, race, and body physique than the one that used to cruise the park. Some observers have described the activities tailored for gay tourists as an instance of the use of gay rights to brand the state as modern and liberal in an attempt to divert attention from the occupation of the Palestinians—­the pinkwashing campaign.42 The Tel Aviv gay pride tourism campaign aimed to bring to Israel—­ with Tel Aviv at the epicenter as the global gay city—­the global gay



Gay Governance

353

consumer. In 2012, the Tel Aviv gay pride tourism campaign reached one of the heights of its success, when GayCities.Com chose Tel-­Aviv as the world’s best destination for gay tourism,43 and tens of thousands of gay tourists came to Israel for the pride parade. The Hilton Beach was one of the main congregation centers and was painted in the pride flag colors. The Tel Aviv municipality hung a flag on the beachfront that combined the rainbow flag and the flag of Israel, with a Star of David in the middle, marking the coalescence of the municipal and national levels. We are therefore witnessing state appropriation not only of gay partnerships or military service but also of the Hilton Beach, one of the sole surviving remnants of non-­consumerism cruising culture (though it had also included paid sex beside cruising), whose main turf in Tel Aviv had once been Independence Park along the beachfront and had now been appropriated by both the consumer culture and the state. The global appeal of the gay tourism campaign, which the municipal activity on the beach partakes in, also points to the interaction between the municipal and national levels of governance with the global one. It is to global gay governance that I turn next.

U.K., U.S., and Global Gay Governance U.K. Gay Governance Turns Global: Exporting Gay Marriage and Advancing Gay Conditionality as Global Gay Governance After legislation allowing same-­sex marriage was enacted in the United Kingdom in 2013, British prime minister David Cameron said he wanted to export gay marriage to the entire world as part of the “global race,” where the United Kingdom should export more and sell more.44 In recent years, however, the expanded legislation and violence against homosexuality in Africa has partly been viewed as a backlash against the recognition of same-­sex marriage in other countries and the fear of local demand for it, or possibly its global export. Nonetheless, the global campaign to “export” gay rights continues and may take a new turn following the U.S. Supreme Court’s recognition of the right to same-­sex marriage.45 In order to fully grasp the role of the United Kingdom in global gay governance and in “exporting” gay rights, we should recall that, beyond

354

Aeyal Gross

the statements cited above, Cameron suggested in 2011 that policy toward LGBT individuals would determine U.K. aid policy. Countries that ban homosexuality could lose aid payments unless they reformed, as part of a policy attaching more “strings” to British aid.46 Britain is one of the premier aid givers in the world, said Cameron, and added that the United Kingdom wants countries that receive its aid to adhere to “proper human rights,” including how they treat gay and lesbians.47 Rahul Rao has called suggestions such as Cameron’s “gay conditionality,” 48 which is one of the most telling examples of global gay governance.49 Cameron’s announcement evoked harsh reactions, some of them arguably homophobic, from political and religious leaders in Africa. A Ugandan presidential advisor accused Cameron of having an “ex-­ colonial mentality.”50 African social justice activists expressed concern over Cameron’s statements and over similar decisions by several donor countries against countries such as Uganda and Malawi. “While the intention may well be to protect the rights of LGBTI [lesbian, gay, bisexual, transgender, and intersex] people on the continent,” these activists said, “the decision to cut aid disregards the role of the LGBTI and broader social justice movement on the continent and creates the real risk of a serious backlash against LGBTI people.”51 The statement is worth quoting from at some length: The imposition of donor sanctions may be one way of seeking to improve the human rights situation in a country but does not, in and of itself, result in the improved protection of the rights of LGBTI people. Donor sanctions are by their nature coercive and reinforce the disproportionate power dynamics between donor countries and recipients. . . . They also tend . . . to exacerbate the environment of intolerance in which political leadership scapegoat LGBTI people for donor sanctions in an attempt to retain and reinforce national state sovereignty. Further, the sanctions sustain the divide between the LGBTI and the broader civil society movement. In a context of general human rights violations, . . . where health and food security are not guaranteed for anyone, singling out LGBTI issues emphasizes the idea that LGBTI rights are special rights and hierarchically more important than other rights. It also supports the commonly held notion that homosexuality is “un-­African” and a western-­sponsored “idea” and that countries like the UK will only act when “their interests” have been threatened.



Gay Governance

355

An effective response to the violations of the rights of LBGTI people has to be more nuanced. . . . The history of colonialism and sexuality cannot be overlooked when seeking solutions to this issue. . . . Furthermore, aid cuts also affect LGBTI people. Aid received from donor countries is often used to fund education, health and broader development. LGBTI people are part of the social fabric, and thus part of the population that benefit from the funding. A cut in aid will have an impact on everyone, and more so on the populations that are already vulnerable and whose access to health and other services are already limited, such as LGBTI people.52

This statement, then, urged the British government to expand its aid to community-­based and community-­led LGBTI programs aimed at fostering dialogue and tolerance and to support national and regional human rights mechanisms. It further urged the United Kingdom to ensure the inclusion of LGBTI issues in its protective and promotional mandates, while supporting the entrenchment of LGBTI issues into broader social justice issues through the financing of community-­led and nationally owned projects. Several reports have pointed to a backlash against “gay conditionality.” Shortly after Cameron’s statement, the president of Ghana declared he would never legalize homosexuality, and religious groups used Cameron’s speech as an opportunity to trigger homophobia. Nigeria enacted a bill criminalizing same-­sex marriage. International pressure, argues Luis Abolafia Anguita, led the Malawi government to blame LGBT people for aid reduction because of an international campaign that followed the fourteen-­year prison sentence imposed on a same-­ sex male couple who married. In the short term, the Malawi campaign was successful because the couple was granted a pardon, but in the long term, it increased the prosecution of LGBT people, pointing to the need for alternative routes for action.53 In a few incidents, gay conditionality turned from threat to reality. Malawi had some of its budget support suspended over concerns about its attitude to gay rights that, as mentioned, generated a backlash.54 The idea was implemented at the global level in February 2014, when the World Bank announced it would indefinitely delay a $90 million health care loan to Uganda because of its anti-­gay law.55 The money in question had been earmarked for the struggle against maternal mortality,

356

Aeyal Gross

which is extremely high in Uganda.56 Given the prevalence of HIV in the country, this measure could have detrimental effects on women. Aid conditionality in regard to health care systems has a problematic history. In the past, rather than gay rights, the “condition” had been economic restructuring, including the cutting of social expenses under the so-­called Washington Consensus.57 Beyond the troubling context of postcolonialism, and particularly given the historical background of the relationship between the United Kingdom and the Commonwealth, the delay of a health care loan and the possibility of health care again becoming a victim of conditionality reverberates quite alarmingly.58 Notably, about two months after the loan suspension, the president of the World Bank Group met with LGBT leaders from around the world, at which time activists urged the World Bank to go further in its actions in favor of sexual minorities.59 Moreover, a coalition of civil society organizations, including U.S.-­based LGBT advocacy groups such as the Human Rights Campaign and the Council for Global Equality, but also Ugandan-­based ones such as Sexual Minorities Uganda and TransEquality Uganda, expressed the position that the delay of the Uganda loan should continue unless Uganda showed substantive progress in stopping discrimination in its health sector.60 Other reports were published showing how, since the enactment of the anti-­homosexuality bill in Uganda, donors had, in protest, been slashing or suspending aid to the country. Health officials, activists, and NGOs warned of the cuts’ potential major impact on health care services, particularly for HIV/AIDS patients. Project and budget support worth about $140 million has been suspended or redirected by the World Bank, the United States, and several European countries, since Ugandan president Yoweri Museveni signed the act into law on February 24, 2014.61 In a critique of such moves, some Ugandan activists expressed a clear position against general aid cuts to Uganda, saying they did not want the people of Uganda to suffer because of the government’s political choices. They supported only strategic aid cuts to specific sectors that had failed to demonstrate respect for human rights and had supported the anti-­gay bill, but they opposed cuts in aid to NGOs and civil society institutions that offer health and other social services.62 Advocates noted that there are indeed many “horrible laws” in Uganda, but singling



Gay Governance

357

out the anti-­gay bill is patronizing and enhances the vulnerability of LGBT people to nonstate and state-­sanctioned homophobia.63 The positions taken by various groups, even within Uganda itself, attest to the real dilemmas raised by this issue.64 Recall that, after the Ugandan Constitutional Court struck down the anti-­gay bill for procedural reasons,65 the Ugandan president said it was no longer necessary and he would not pursue the new law any further. Although the country’s previous anti-­gay law remained in force, international pressure may have affected the decision to desist from pursuing the new legislation.66 To assume that international pressure was indeed useful here may affect the evaluation of this specific case of global gay governance. Further analysis of this case requires disentangling the symbolic from the material level. Arguably, the debate should shift from the symbolic level (which is mostly concerned with the neocolonial undertones of conditionality and more generally with north–­south pressures) to the material level. At the material level, we can see this case as one of policy, possibly imposing risks on the lives of women (and babies) needing maternal health care in order to save the lives of gay people—­a risk that, if real, should be deemed unacceptable. For a more exact assessment, we would need to know whether the loan suspension did cause real damage to maternal health and also prevented anti-­gay legislation. The issue of backlash should, obviously, also be part of this equation.

U.S. and Global Gay Governance In 2011, U.S. secretary of state Hilary Clinton addressed the need for global consensus on the recognition of the human rights of LGBT citizens everywhere: “The Obama Administration defends the human rights of LGBT people as part of our comprehensive human rights policy and as a priority of our foreign policy.“67 In U.S. embassies, Clinton said, diplomats were raising concerns about specific cases and laws and were working with a range of partners to strengthen human rights protections for all. In Washington, the State Department created a task force to support and coordinate this work. Clinton further announced that President Barack Obama had directed all U.S. government agencies overseas to combat the criminalization of LGBT status and conduct, to enhance efforts to protect vulnerable LGBT refugees and asylum seekers, to ensure that U.S. foreign assistance promotes the

358

Aeyal Gross

protection of LGBT rights, to enlist international organizations in the fight against discrimination, and to respond swiftly to abuses against LGBT persons.68 In the memo issued by President Obama, U.S. foreign aid agencies were directed to engage regularly with governments, citizens, civil society, and the private sector to foster awareness of LGBT human rights.69 The implementation of the new policy took the form of banning Ugandan officials responsible for anti-­LGBT human rights abuses from entering the United States.70 The Global Equality Fund, which was launched by the State Department as part of this initiative in 2011, is managed by the State Department with the U.S. Agency for International Development. Several LGBT advocacy groups, such as the Human Rights Campaign, later joined this initiative,71 pointing to the emerging U.S.-­led global gay governance. In November 2014, the U.S. State Department hosted a conference designed to increase funding for global LGBT advocacy efforts. At this conference, it was announced that, in 2014, the United States had contributed more than $5 million to advance LGBT rights in more than fifty countries, and that the Obama administration had also worked through various partnerships to generate an additional $3.4 million for this effort in the previous fiscal year.72 Further signs of this process were evident in 2015, when the State Department announced the appointment of a special envoy to advocate for the rights of LGBT people.73 The executive director of the International Gay and Lesbian Human Rights Commission called this a “welcome development and historic moment in the U.S. government’s progress in promoting the dignity and equality of LGBT people around the world.”74 At the same time, argued Adebisi Alimi, many outside the United States were concerned that the appointment might be more symbolic than substantive and that the symbol may be a “negative” one—­why the focus on LGBT rights with no special envoy on such issues as gender violence, poverty, and more? Moreover, the risk is that the envoy might look like “a white person trying to save brown and black LGBT people from their brown and black oppressors,” reinforcing the idea that LGBT activists in Africa had worked hard to debunk the notion that “homosexuality is something white people in Western countries do that is then imported into African countries.”75 These questions resonated when U.S. officials raised gay rights as an issue



Gay Governance

359

during visits to Africa, be it Secretary of State John Kerry in Nigeria76 or President Barack Obama in Kenya.77 The importance of these U.S.-­led campaigns to LGBT activists around the world who work in hard conditions should not be undervalued. Indeed, they often acknowledge American support.78 My discussion of the American position as formulated by Clinton and Obama is not meant to describe it in negative terms but to point out the risks entailed in its implementation. Differences are clearly evident between the Cameron position and the Clinton-­Obama messages, which not only omit Cameron’s advocacy of gay conditionality but also endorse a less pontificating style, with Clinton herself acknowledging the problematic record of the United States itself on LGBT rights.79 But while the U.S. policy as declared in 2011 did not include a conditionality provision of the kind that Cameron had announced, it remained “unclear whether those countries that target and discriminate against gays and lesbians would have their funding cut,”80 even though neither Clinton nor Obama (unlike Cameron) had mentioned conditionality at all.81 Eventually, the United States was in fact one of the countries that did suspend health-­related aid to Uganda in a sum of $13.4 million because of its violation of LGBT rights, even though it had claimed that the cuts would not affect essential health services, agricultural programming, or initiatives in democracy and governance.82 With the election of Donald Trump and the subsequent change of administration, the future role of the United States in global gay governance remains unpredictable. Currently, the special envoy position remains vacant.83

LGBT Human Rights Discourse in the UN Gay governance, as described here, is related to another development—­ the growing turn of the legal and advocacy discourse on sexuality and within the UN system to human rights, and particularly international human rights law—­a development on which I expand elsewhere.84 While facing many objections and as yet less developed than the recognition of other groups’ rights, this turn has seen some success. Examples are the 2010 Resolution on Extrajudicial, Summary, or Arbitrary Executions adopted at the UN General Assembly,85 which addressed the killing of persons based on their sexual orientation, and the 2011 Resolution of the UN Human Rights Council on Human

360

Aeyal Gross

Rights, Sexual Orientation, and Gender Identity,86 which expressed grave concern over acts of violence committed against individuals because of their sexual orientation and gender identity. The latter resolution led to a report by the UN High Commissioner on Human Rights entitled Discriminatory Law and Practices and Acts of Violence against Individuals Based on Their Sexual Orientation and Gender Identity, published in December 2011,87 and to a second one in 2014.88 In 2016, the United Nations Human Rights Council decided to appoint an independent expert to deal with protection against violence and discrimination based on sexual orientation and gender identity.89 In the current context, it is important to point out how these processes of LGBT advocacy at the UN level, reflecting hard-­won victories by international LGBT advocacy groups, are also part of the process described here, and are preconditions for new forms of global gay governance. The emergence of global gay governance would have been harder to imagine without the changes in the role of LGBT advocacy and rights, of which these process are part. The following quote from Scott Long, a longtime international LGBT rights activist who was program director in the International Gay and Lesbian Human Rights Commission, and later founding director of the Lesbian, Gay, Bisexual, and Transgender Rights Program at Human Rights Watch, goes to the heart of the matter: When I started lobbying the UN about fifteen years ago, queers had no power. Nobody offered them the slightest regard; nobody noticed their politics or positions; with the possible and partial exception of the Dutch, there wasn’t a single country willing to make even a rhetorical genuflection to the rights of LGBT people as a serious issue anywhere in its foreign policy. This absence of clout was wonderful, inspiring. The lightness of being it brought was not only bearable, it was beautiful, an afflatus of innocence that bore one ecstatically aloft in places the merely practical could never reach. Trying to advocate in this atmosphere of glorious irrelevance, one was never corrupted by the blandishments of power; no one wanted your support, so there was not the least temptation to sell it. . . . Now, of course, there are states that pay attention to us. And for better or for worse, we have to deal with their histories and practices, their virtues and their sins, because these affect us. If we don’t watch out, they will all become our own. . . . We have to decide when to speak with them



Gay Governance

361

and when to speak against them, and reserve and exercise the right to the latter as well as the former. We can’t, as movements, reject all those who want to aid us. Maturity means negotiating, not denying, these obstacles. Politics means accepting the burden of having—­however little—­power. But we also have to be willing to stand up to our friends and risk their enmity in the name of what we see as truth, instead of clapping hands mechanically and taking handouts with uncritical gratitude.90

Long later criticized a relevant development within the UN system—­a briefing within a closed-­doors Security Council informal meeting (known as an “Arria-­formula meeting”) on the Islamic State persecution of LGBT Syrians and Iraqis.91 Long critically described holding the meeting as, at best, “useless” and, at worst, something that will “cause more killings,” giving the Islamic State “an easy chance to affirm its law and write its defiance of the Security Council in blood.”92 He also pointed to a rise in killings for homosexual acts as attested by ISIS, including new executions reported after the meeting.93 Long argues that putting LGBT victims of ISIS under the symbolic protection of the United States and invoking the Security Council to save them made sense only if there is anything the United States and the UN can and will do.94 If all they can do is talk, argues Long, the only result is the cost. He thereby offers an insightful note on how, when measuring global gay governance, we should examine whether this “governance” can indeed achieve its perceived goals of liberation. Against Long’s skeptical position, however, we see LGBT groups supporting and encouraging these processes. For example, the Council for Global Equality, an organization that describes its mission as “advancing an American foreign policy inclusive of sexual orientation and gender identity,”95 granted an award to the U.S. ambassador to the United Nations Samantha Power for her efforts in support of LGBT rights outside the United States, noting the Security Council meeting criticized by Long as a centerpiece of her respected work.96

Conclusion The examples discussed in this chapter point to the complex consequences of the shift in the status of homosexuality, from a social

362

Aeyal Gross

phenomenon suffering persecution or at least marginalization by the state to one that is part of the state, the municipality, or global governance. Support by gay activists of legislation that could lead to greater incarceration or of the “gentrification” of “cruising,” participation in actions that states may use as propaganda, the turning of same-­sex marriage into an “export” commodity that could increase persecution of people practicing same-­sex relationships in the global South, the emergence of “gay conditionality”—­a ll are signs of “gay governance.” Arguably, any demand for rights engages the state and is thus open for the appropriation discussed here. In assessing the processes described in this chapter, therefore, careful analysis is needed.97 The question of benefits versus costs addressed throughout this chapter resonated in the mainstream media when the New York Times ran a story in December 2015 titled “U.S. Support of Gay Rights in Africa May Have Done More Harm than Good.”98 In the story, gay Nigerians were cited as blaming not only Nigerian society and authorities for harassment and for the violence triggered by a new anti-­gay law but also the United States, whose support, some argued, had made things worse by causing more resistance and triggering people’s defense mechanisms. The new law was widely regarded, according to the article, as a reaction to American pressure on Nigeria and other African countries to embrace gay rights. The article mentioned that a great deal of U.S. money and public diplomacy were used in Africa in a way that opened up conversations on a previously taboo subject, but also made gay and lesbians more visible and more vulnerable to harassment and violence.99 As expected, the New York Times report drew criticism, with Colin Stewart arguing that the article’s focus on Nigeria failed to give enough account of the way the risk of losing U.S. money may have persuaded the Ugandan government not to revive the Anti-­Homosexuality Act, or of the release in Malawi of men arrested on homosexuality charges after public criticism by the U.S. ambassador and others.100 The U.S. State Department criticized the article as fundamentally misrepresenting the situation of LGBTI people in Africa, emphasizing that the State Department always works in close consultation with local groups in the civil society and in affected communities, based on the principle of “do no harm.”101 Similar sentiments were expressed by Frank Mugisha, the executive director of Sexual Minorities Uganda, who stated that the United States follows the lead of local activists before taking



Gay Governance

363

action on their behalf, and that LGBTI people in Uganda sounded the global alarm because the proposed legislation placed lives at risk. Ugandan activists, argued Mugisha, advised the American government on how to minimize harm, “and they listened.” In Mugisha’s account, it is African politicians who employ the narrative of a “neocolonial” phenomenon to maintain their power at the expense of LGBTI people. Mugisha does not deny the backlash but says that, if there is greater violence now that LGBTI people are more visible in Nigeria and elsewhere, the blame is on homophobia, not on funding.102 The controversy about the effects of global gay governance on the situation of LGBT people in Africa points to the complexity of assessing its costs and benefits: What is reality and what is rhetoric? What are symbolic costs and what are real-­life consequences? Although assessing these elements in each case can be a daunting task, as this chapter has shown, gay governance is present at all three levels of government. The risk of co-­optation is too big to be ignored and requires us to constantly consider the costs and benefits involved when governments become involved in the struggle for LGBT equality.

Notes I am grateful to Janet Halley, Chen Misgav, Davit Paternotte, Rahul Rao, and Hila Shamir for their comments on a previous version of this chapter. Special thanks to Scott Long for his ongoing reporting and discussion of the issues addressed here, without which writing this chapter would have proved far more difficult. This chapter is dedicated to Scott and to his full and speedy recovery. Previous versions of the chapter were presented at the faculty seminar of the School of Law in the Interdisciplinary Center in Herzliyyah; at the Queering International Law workshop of the University of Melbourne; at the Queer Perspectives on Law 3 workshop held at SOAS, University of London; and at the 2016 Critical Legal Conference held at Kent Law School. I am grateful to the participants in these forums for their useful comments and suggestions. Thanks to Roy Mattar for his dedicated research assistance. Special thanks to Batya Stein for her excellent editing work. 1. See Aeyal Gross, “Between the Homosocial and the Homoerotic: Gays/Military in Comparative and International Law,” Hague Yearbook of International Law 2000 (2001): 86–­91. 2. Jasbir Puar, Terrorist Assemblages: Homonationalism in Queer Times (Durham, N.C.: Duke University Press, 2007), 36–­40. 3. For a discussion, see Aeyal Gross, “The Politics of LGBT Rights in Israel and Beyond: Nationality, Normativity, and Queer Politics,” Columbia Human Rights Law Review 46 (2015): 81–­152. Currently, the term plays a central role in the global discussion of the LGBT cause in Israel and Palestine. On this discussion and related activism,

364

Aeyal Gross

see Sarah Schulman, Israel/Palestine and the Queer International (Durham, N.C.: Duke University Press, 2012). For a critique of how the debate about pinkwashing in the United States has less to do with the realities of queerness in Israel/Palestine but more with the utility of pinkwashing for making claims to queer space in the United States, see Jason Ritchie, “Pinkwashing, Homonationalism, and Israel-­Palestine: The Conceits of Queer Theory and the Politics of the Ordinary,” Antipode 47, no. 3 (2014), doi:10.1111/anti.12100. See also, Katherine Franke, “Dating the State: Moral Hazards of Winning Gay Rights,” Columbia Human Rights Law Review 44 (2012): 1–­46. 4. On this dynamic, see David Paternotte, Manon Tremblay, and Carol Johnson, eds., introduction to The Lesbian and Gay Movement and the State: Comparative Insights into a Transformed Relationship (Burlington, Vt.: Ashgate, 2011), 6–­7. 5. Kevin Moss, “Split Europe: Homonationalism and Homophobia in Croatia,” in LGBT Activism and the Making of Europe: A Rainbow Europe?, ed. Phillip M. Ayoub and David Paternotte (Basingstoke, U.K.: Palgrave Macmillan, 2014), 213. 6. Ibid., 215. 7. See Franke, “Dating the State”; Gross, “The Politics of LGBT Rights.” 8. See Janet Halley, Prabha Kotiswaran, Hila Shamir, and Chantal Thomas, “From the International to the Local in Feminist Legal Response to Rape, Prostitution/ Sex Work and Sex Trafficking: Four Studies in Contemporary Governance Feminism,” Harvard Journal of Law and Gender 29 (2006): 336–­423. 9. See Michel Foucault, Security, Territory, Population: Lectures at the Collège de France, 1978–­79, trans. Graham Burchell (New York: Palgrave, 2007); Foucault, The Birth of Biopolitics: Lectures at the Collège de France, 1978–­79, trans. Graham Burchell (New York: Palgrave, 2008). 10. Janet Halley, Prabha Kotiswaran, Rachel Rebouche, and Hila Shamir, “Preface: Introducing Governance Feminism,” in Halley, Kotiswaran, Rebouche, and Shamir, Governance Feminism: An Introduction (Mineapolis: University of Minnesota Press, 2018), ix–­x. 11. For an expanded discussion, see Aeyal Gross, “Homoglobalism: The Emergence of Global Gay Governance,” in Queering International Law, ed. Dianne Otto (New York: Routledge, 2017). On the anti-­homophobia actions of international financial institutions, see Rahul Rao, “Global Homocapitalism,” Radical Philosophy 194 (2015), https://www.radicalphilosophy.com/article/global-homocapitalism (accessed November 15, 2015). 12. For some of these concerns, see Janet Halley, “Recognition, Rights, Regulation, Normalization: Rhetorics of Justification in the Same-­Sex Marriage Debate,” in Legal Recognition of Same-­Sex Partnerships: A Study of National, European and International Law, ed. Robert Wintemute and Mads Henry Andenæs (Oxford: Hart, 2001), 97; Michael Warner, The Trouble with Normal: Sex, Politics and the Ethics of Queer Life (New York: Free Press, 1999), 96; Katherine Franke, Wedlocked: The Perils of Marriage Equality (New York: New York University Press, 2015). 13. Hate Crimes Prevention Act of 2009, 18 U.S.C. § 249. 14. See, e.g., Human Rights Campaign, “Hate Crimes Law: The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act,” http://www.hrc.org/resources /entry/hate-crimes-law (accessed November 13, 2015) (detailing from the perspective of the Human Rights Campaign the importance of the Act and listing other groups that supported it).



Gay Governance

365

15. Jason Lydon for Black and Pink, “A Compilation of Critiques on Hate Crimes Legislation,” in Against Equality: Queer Revolution, Not Mere Inclusion, ed. Ryan Conrad (Oakland, Calif.: AK Press, 2014), 177–­80. In the same volume, see also Sylvia Rivera Law Project, “SRLP Opposes the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act,” 181–­83; and Dean Spade, “Their Laws Will Never Make Us Safe,” 165–­75. For a broader context, see also Dean Spade, Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of Law (Brooklyn, N.Y.: South End Press, 2011). 16. See Ryan R. Thoreson, Transnational LGBT Activism: Working for Sexual Rights Worldwide (Minneapolis: University of Minnesota Press, 2014). 17. Sarah Lamble, “Queer Investments in Punitiveness: Sexual Citizenship, Social Movements, and the Expanding Carceral State,” in Queer Necropolitics, ed. Jin Haritaworn, Adi Kuntsman, and Silvia Posocco (Abingdon, U.K.: Routledge, 2014), 151–­71. 18. The discussion in this section draws partly on Gross, “The Politics of LGBT Rights,” which documents the processes described here at a level of detail exceeding the scope of this chapter. 19. See Orna Ben-­Naftali, Aeyal Gross, and Keren Michaeli, “Illegal Occupation: Framing the Occupied Palestinian Territories,” Berkeley Journal of International Law 23 (2005): 551–­614. 20. Sammy Smooha, “Ethnic Democracy: Israel as an Archetype,” Israel Studies 2, no. 2 (1997): 198–­241. 21. Oren Yiftachel, Ethnocracy: Land and Identity Politics in Israel/Palestine (Philadelphia: University of Pennsylvania Press, 2006). For a comprehensive discussion, see Aeyal Gross, “Democracy, Ethnicity, and Constitutionalism in Israel: Between the ‘Jewish State’ and the ‘Democratic State’” (in Hebrew), Israeli Sociology 2 (2000): 647–­73. 22. See, e. g., Brian Whitaker, “Pinkwashing Israel,” Al-­Bab, June 17, 2010, www​ .al-bab.com/blog/blog1006b.htm (accessed November 13, 2015); Sarah Schulman, “A Documentary Guide to Pinkwashing,” Huffington Post, November 29, 2011, http://www.huffingtonpost.com/sarah-schulman/israel-pinkwashing_b_1132369. html (accessed November 13, 2015). 23. See, e.g., the Gay Rights in Israel, booklet published by the Foreign Ministry of Israel (n.d., on file with the author). 24. Mel Bezalel, “Gay Pride Being Used to Promote Israel Abroad,” Jerusalem Post, July 6, 2009, www.jpost.com/Israel/Article.aspx?id=144736 (accessed November 13, 2015). See also Gross, “The Politics of LGBT Rights,” 96–­98. 25. Gili Izikovich, “Assi Azar Will Lead Foreign Ministry Campaign on Life for Homosexuals in Israel,” Haaretz, October 25, 2011, www.haaretz.co.il/news /education/1.1530704 (accessed November, 13 2015). 26. See Barak Ravid, “Israel Recruits Gay Community in PR Campaign against Iran,” Haaretz, April 20, 2009, http://www.haaretz.com/news/israel-recruits-gay​ -community-in-pr-campaign-against-iran-1.274422 (accessed November 13, 2015). 27. “Tel Aviv Gay Tourism Campaign: Tourism Ministry Will Invest NIS 170,000” (in Hebrew), Marker, July 22, 2010, www.themarker.com/misc/1.592180 (accessed November 13, 2015).

366

Aeyal Gross

28. “Prime Minister Benjamin Netanyahu’s Speech to the UN General Assembly,” Haaretz, September 24, 2009, www.haaretz.com/news/prime-minister-benjamin-ne​ tanyahu-s-speech-to-the-un-general-assembly-1.7254 (accessed November 13, 2015); “Transcript of Benjamin Netanyahu’s Address to the 2014 UN General Assembly,” Haaretz, September 29, 2014, http://www.haaretz.com/news/diplomacy -defense/1.618308 (accessed November 13, 2015). 29. On the flotilla incident and the legal questions it raises, see Douglas Guilfoyle, “The Mavi Marmara Incident and Blockade in Armed Conflict,” British Yearbook of International Law 81 (2011): 171–­223. 30. Roni Sofer, “PM to Austrian Chancellor: Peace Activists Should Go to Tehran” (in Hebrew), Ynet, June 23, 2010, www.ynet.co.il/articles/0,7340,L-3909837,00.html (accessed November 13, 2015). 31. This move is familiar from a similar use of women’s rights to justify war. For a discussion, see, e. g., Ratna Kapur, “Unveiling Women’s Rights in the ‘War on Terrorism,’” Duke Journal on Gender Law and Policy 9 (2002): 211–­25. 32. See Schulman, Israel/Palestine, 135. 33. See, e.g., Franke, “Dating the State.” 34. James Duke Mason, “Why LGBT People around the World Need Israel,” Advocate, July 9, 2014, http://www.advocate.com/commentary/2014/07/09/op-ed -why-lgbt-people-around-world-need-israel (accessed November 13, 2015). 35. Gross, “The Politics of LGBT Rights.” 36. For example, Shiri Eisner describes a number of events from the perspective of Israeli bisexual politics. Activists who sought to convey messages that deviated in gender or political terms from the gay mainstream were forced to fight for their place and voice and were sometimes excluded and silenced. Shiri Eisner, “Love, Rage and the Occupation: Bisexual Politics in Israel/Palestine,” Journal of Bisexuality 12, no. 1 (2012): 80–­137. 37. Aeyal Gross, “Sexuality, Masculinity, Military, and Citizenship: The Service of Gays and Lesbians in the Israeli Army in Comparative Perspective” (in Hebrew), Plilim 9 (2000): 95–­183. 38. Yishai Blank and Issi Rosen-­Zvi, “The Geographies of Sexuality,” North Carolina Law Review 90 (2012): 958. 39. See Tovi Fenster and Itay Manor, “Gay-­Lesbian Municipal Citizenship in the Tel Aviv and Jerusalem Space” (in Hebrew), Israeli Sociology 12 (2010): 23–­26. On the role of the municipality in support for the community, see Nurit Alfasi and Tovi Fenster, “A Tale of Two Cities: Jerusalem and Tel-­Aviv in an Age of Globalization,” Cities 22 (2005): 287–­88. 40. On these processes and the place of the Center, see Chen Misgav, “Radical Activism and Autonomous Contestation ‘From Within’: The LGBT Community Center in Tel Aviv,” in Routledge Research Companion for the Geography of Sex and Sexuality, ed. Gavin Brown and Katherine Browne (London: Ashgate, 2016), 105–­15; Misgav, “Gay-­R iatrics: Spatial Politics and Activism of Elderly Gay Men in Tel-­Aviv’s Gay Community Center,” Gender, Place and Culture: A Journal of Feminist Geography 23, no. 11 (2016): 1519–­534; Misgav, “With the Current, Against the Wind: Constructing Spatial Activism and Radical Politics in Tel Aviv’s LGBT Community Center,”  ACME: An International E-­Journal for Critical Geography  14, no. 4 (2015):



Gay Governance

367

1208–­234; Gilly Hartal, “The Gendered Politics of Absence: Homonationalism and the Gendered Power Relations in Tel-­Aviv’s Gay–­Center,” in Lesbian Geographies: Gender, Place and Power, ed. Kath Browne and Eduarda Ferreira (Farnham, U.K.: Ashgate, 2015), 91–­112. For a more general view of municipal LGBT politics in Israel, see Alfasi and Fenster, “A Tale of Two Cities,” 361–­62. 41. Ofri Ilany, “T.A. Gay Community Says City Trying to Evict Them from Cruising Site,” Haaretz, November 23, 2009, http://www.haaretz.com/print-edition​ /news/t-a-gay-community-says-city-trying-to-evict-them-from-cruising-site-1.3647 (accessed November 13, 2015). On Independence Park, and specifically on this incident, see Dafna Hirsch, “Homotopia: Independence Park in Tel Aviv,” in A Different Sex: An Israeli Queer Anthology (in Hebrew), ed. Aeyal Gross, Amalia Ziv, and Raz Yosef (Tel Aviv: Resling, 2016), 443. 42. For a discussion, see Gross, “The Politics of LGBT Rights,” 146. 43. See Ilan Lior, “Pink on the Outside, Gray on the Inside/TA’s ‘Best Gay Destination’ Title Masks Ongoing Prejudice,” Haaretz, January 13, 2012, http://www​ .haaretz.com/print-edition/news/pink-on-the-outside-gray-on-the-inside-ta-s​ -best-gay-destination-title-masks-ongoing-prejudice-1.407020 (accessed November 13, 2015); Guy Erlich and Odeya Ganor, “Critically Queer: Is Tel Aviv Really Good for Gays?” (in Hebrew), Akhbar ha-­Ir, January 20, 2012, www.mouse.co.il/CM​ .articles_item,1627,209,65850,.aspx (accessed November 13, 2015); Tal Shalev, “Israel ‘the Proudest in the World,’ or Just Painted Pink?” (in Hebrew), Walla News, January 6, 2012, news.walla.co.il/?w=/90/1891771 (accessed November 13, 2015). 44. Christopher Hope, “David Cameron: ‘I Want to Export Gay Marriage around the World,’” Telegraph, July 24, 2013, http://www.telegraph.co.uk/news/politics​ /10200636/I-want-to-export-gay-marriage-around-the-world-says-David-Cameron​ .html (accessed November 13 2015). 45. About the potential effects of marriage equality in the United States following the Supreme Court decision in Obergefell v. Hodges (2015) in changing the role of the United States in global advocacy for LGBT rights, see J. Lester Feder, “Will Supreme Court Ruling Put LGBT Rights at the Heart of the U.S. Global Human Rights Push?,” BuzzFeed News, June 29, 2015, http://www.buzzfeed.com/lesterfeder​ /will-supreme-court-ruling-put-lgbt-rights-at-the-heart-of-th#.ofYAMjvQO (accessed November 14, 2015). 46. “Countries That Ban Homosexuality Risk Losing Aid, Warns David Cameron,” Guardian, October 30, 2011, http://www.theguardian.com/politics/2011/oct​ /30/ban-homosexuality-lose-aid-cameron (accessed November 14, 2015). 47. David Cameron, “The Andrew Marr Show,” interview by Andrew Marr, transcript by Philip Hammond, BBC News, October 30 2011, http://news.bbc.co.uk/2/hi​ /programmes/andrew_marr_show/9627898.stm (accessed November 14, 2015). 48. Rahul Rao, “On ‘Gay Conditionality,’ Imperial Power and Queer Liberation,” Kafila, January 1, 2012, http://kafila.org/2012/01/01/on-gay-conditionality-imperial​ -power-and-queer-liberation-rahul-rao/ (accessed November 14, 2015). See also Scott Long, “Resources for the Unbelievers, on Aid Conditionality and LGBT Rights,” A Paper Bird: Sex, Rights and the World, June 26, 2012, http://paper-bird.net/2012​ /06/26/resources-for-the-unbelievers-on-aid-conditionality-and-lgbt-rights/ (accessed November 14, 2015).

368

Aeyal Gross

49. In 2016, the UN Human Rights Council adopted a resolution to appoint an independent expert on protection against violence and discrimination based on sexual orientation and gender identity. The resolution included a preambular paragraph, deploring the use of external pressures and coercive measures against states, including through the application of conditionality on official development assistance, seeking to influence the relevant domestic debates and the national decision-­ making process. This text was added at the initiative of the Organization of Islamic Countries (except Albania), which objected to the resolution altogether and also suggested a few amendments, including the one described here, which were incorporated into the resolution. For the resolution, see United Nations Human Rights Council, Resolution A/HRC/RES/32/2, http://ap.ohchr.org/documents/dpage_e​ .aspx?si=A/HRC/32/L.2/Rev.1 (accessed August 2, 2016). For the discussion, see http://webtv.un.org/search/ahrc32l.2rev.1-vote-item3–41st-meeting-32nd-regular​ -session-of-human-rights-council/5009164455001?term=HUMAN%20RIGHTS %20COUNCIL&languages=&sort=date#full-text (accessed August 2, 2016). For a discussion, see Gross, “Homoglobalism.” 50. “Uganda Fury at David Cameron Aid Threat over Gay Rights,” BBC News, October 31, 2011, http://www.bbc.com/news/world-africa-15524013 (accessed November 14, 2015). 51. “Statement on British ‘Aid Cut’: Threats to African Countries that Violate LGBTI Rights,” Pambazuka News, October 27, 2011, http://www.pambazuka.net/en /category.php/advocacy/77470 (accessed November 14, 2015). For a discussion of the backlash showing that homosexuality is portrayed in several African countries by a hostile media and by the political elite as an imported cultural abomination, see Stephen Wood, “Sexuality, Development and Continued Colonialism?,” Institute of Development Studies Blog, November 3, 2011, https://participationpower.wordpress​ .com/2011/11/03/sexuality-development-and-continued-colonialism/ (accessed Nov­ ember 14, 2015). For further critique, see Akshay Khanna, “Aid Conditionality and the Limits of a Politics of Sexuality,” Institute of Development Studies Blog, October 31, 2011, https://participationpower.wordpress.com/2011/10/31/aid-conditionality -and-the-limits-of-a-politics-of-sexuality/ (accessed November 14, 2015). 52. Ibid. 53. Luis Abolafia Anguita, “Aid Conditionality and Respect for LGBT People Rights,” in The Global Context: Sexuality and Geopolitics, Sexuality Policy Watch (SPW) Working Paper no. 7 (April 2012), http://www.sxpolitics.org/wp-content /uploads/2012/04/spw-wp7-the-global-context-sexuality-and-politics.pdf (accessed November 14, 2015). On Ghana, see also Scott Long, “Backlash in Ghana: New Anti-­ Gay Legislation Discussed,” A Paper Bird: Sex, Rights and the World, November 3, 2011, http://paper-bird.net/2011/11/03/backlash-in-ghana-new-anti-gay-legislation​ -discussed/ (accessed November 14, 2015). On the adverse aspects of gay conditionality, see also Hakima Abbas, “Aid, Resistance and Queer Power,” in The Global Context. 54. See “Uganda Fury at David Cameron Aid Threat over Gay Rights.” 55. J. Lester Feder, “World Bank Delays $90 Million Loan to Uganda as Bank President Blasts Anti-­Gay Laws,” BuzzFeed, February 27, 2014, http://www.buzzfeed​ .com/lesterfeder/world-bank-delays-90-million-loan-to-uganda-as-bank-president​



Gay Governance

369

#.kr32Bve0G (accessed November 14, 2015). See also an opinion by the president of the World Bank, Jim Yong Kim, World Bank Group, “Discrimination by Law Carries a High Price,” February 28, 2014, http://www.worldbank.org/en/news/opin​ ion/2014/02/28/world-bank-group-president-jim-yong-kim-discrimination-law​ -price (accessed August 2, 2016). For a critique of this move, see “Right Cause, Wrong Battle,” Economist, April 12, 2014, http://www.economist.com/news/leaders​ /21600684-why-world-banks-focus-gay-rights-misguided-right-cause-wrong-battle (accessed August 2, 2016). 56. Scott Long, “Uganda, the World Bank and LGBT Rights: Winners and Losers,” A Paper Bird: Sex, Rights and the World, March 10, 2014, http://paper-bird​ .net/2014/03/10/uganda-the-world-bank-and-lgbt-rights-winners-and-losers/ (accessed November 14, 2015). 57. Sue L. T. McGregor, “Neoliberalism and Healthcare,” International Journal of Consumer Studies 25, no. 2 (2001): 82–­89; Alicia Ely Yamin, “Power, Suffering and Courts: Reflections on Promoting Health Rights through Judicialization,” in Litigating Health Rights: Can Courts Bring More Justice to Health?, ed. Alicia Ely Yamin and Siri Gloppen (Cambridge, Mass.: Harvard University Press, 2011), 340. 58. See Peter Dunne, “LGBTI Rights and the Wrong Way to Give,” Harvard Kennedy School Review 12 (2012): 67–­70, http://issuu.com/harvardksr/docs/2012 (accessed November 14, 2015). 59. “President Kim Hosts First-­Ever Meeting with LGBT Leaders at World Bank/ IMF Shareholder Event,” April 11, 2014, http://www.worldbank.org/en/news/press​ -release/2014/04/11/president-kim-hosts-first-ever-meeting-with-lgbt-leaders-at​ -world-bank-imf-shareholder-event (accessed August 29, 2017). 60. Council for Global Equality, “Joint CSO Letter to World Bank on Discrimination in Uganda’s Health Sector,” undated, http://globalequality.org/newsroom/lat​ est-news/1-in-the-news/203-worldbankcsoletter (accessed November 15, 2015). 61. “Briefing: Punitive Aid Cuts Disrupt Healthcare in Uganda,” IRIN News, April 2, 2014, http://www.irinnews.org/printreport.aspx?reportid=99878 (accessed November 15, 2015). For a discussion of the World Bank’s move as part of a wider move whereby international financial institutions take activist stands against homophobia as part of “global homocapitalism,” see Rao, “Global Homocapitalism.” For a discussion of the relationship that develops in this context between the human rights agenda and the development agenda, and specifically addressing this incident, see Andrew Park, “A Development Agenda for Sexual and Gender Minorities,” Williams Institute, June 2016, 14–­17, http://williamsinstitute.law.ucla.edu/research/a-develop​ ment-agenda-for-sexual-and-gender-minorities/ (accessed August 29, 2017). 62. Scott Long, “From Uganda: Guidelines for Action against the Anti-­ Homosexuality Bill,” A Paper Bird: Sex, Rights, and the World, March 5, 2014, http:// paper-bird.net/2014/03/05/from-uganda-guidelines-for-action-against-the-anti -homosexuality-bill/ (accessed November 15, 2015). For further critique of “gay conditionality,” see Scott Long, “More Thoughts on Aid Conditionality: And an Apology to Paul Canning, III,” A Paper Bird: Sex, Rights, and the World, January 11, 2012, http://paper-bird.net/2012/01/11/more-thoughts-on-aid-conditionality-and-an​ -apology-to-paul-canning-iii/ (accessed November 15, 2015); Tara Atluri, “‘Time after Time’: Gay Conditionality, Colonial Temporality and Azadi,” in Sexuality, Citizenship

370

Aeyal Gross

and Belonging: Trans-­National an Intersectional Perspectives, ed. Francesca Stella, Yvette Taylor, Tracey Reynolds, and Antoine Rogers (New York: Routledge, 2016), 149–­61. 63. “Briefing: Punitive Aid Cuts.” 64. One additional argument states that human rights groups, by “exporting” the identity issue in the context of their advocacy work, are partly responsible for creating the problem. Joseph Massad accused what he called the “Gay International” of producing gays and lesbians where they do not exist in a way that represses same-­sex desires and practices that refuse to be assimilated into its sexual epistemology. The “Gay International” campaign to universalize itself, he claimed, gave rise to a discourse on homosexuality. In the context of international human rights work conducted around the trial of men who had been arrested in Egypt on the “Queen Boat” club on the Nile and accused of practicing “debauchery,” Massad argued that this crackdown had followed the increased visibility of Westernized, Cairo-­based, upper-­and middle-­class Egyptian men who identified themselves as gay. The “Gay International,” he argued, misses the important distinction that what is repressed by the Egyptian police is not same-­sex sexual practices but the social identification of these practices with the Western identity of gayness. Massad argues that, by exporting gay identity, the international gay rights movement imposes the binary hetero/homo division on a society in which it does not exist and incites a discourse on homosexuality that will actually make same-­sex sex less feasible. Joseph Massad, “Re-­Orienting Desire: The Gay International and the Arab World,” Public Culture 14 (2002): 361–­86. See also Joseph Massad, Desiring Arabs (Chicago: University of Chicago Press, 2007). Against Massad’s argument, we can consider whether international gay identity indeed results from the “universalization” of human rights or is actually exported through “globalization,” meaning through the globalized world of information, tourism, media, and money. Consider also whether globalization per se refers simply to the Western model of gayness imposed on Egypt or is rather a mixture of local and global notions of sexuality crystallized in a complex process of negotiation and production. Clearly, the gay rights universalizing move reinforces the outcomes of globalization but is also a response to it. The discourse of human rights unfolds against a background where globalization has already “exported” a “Western” model of sexuality and the construction of sexuality is already postcolonial, but this identity cannot be reduced to one single specific model. I discuss this issue in greater detail in Aeyal Gross, “Queer Theory and International Human Rights Law: Does Each Person Have a Sexual Orientation?,” Proceedings of the Annual Meeting (American Society of International Law) 101 (2007): 129–­32. See also Amr Shalakany, “On a Certain Queer Discomfort with Orientalism,” Proceedings of the Annual Meeting (American Society of International Law) 101 (2007): 125–­29; Rahul Rao, Third World Protest between Home and the World (Oxford: Oxford University Press, 2010), 176–­79. 65. Oloka-­Onyango & 9 Ors v. Attorney General (Constitutional Petition No. 08 of 2014), UGCC 14 (August 1, 2014), https://www.ulii.org/ug/judgment/constitu​ tional-court/2014/14/ (accessed August 29, 2017). 66. Joe Williams, “Uganda’s President Says New Anti-­Gay Laws ‘Not Necessary,’” Pink News, September 16, 2015, http://www.pinknews.co.uk/2015/09/16/ugandas​ -president-says-new-anti-gay-laws-not-necessary/ (accessed August 29, 2017).



Gay Governance

371

67. Hillary Rodham Clinton, “Remarks in Recognition of International Human Rights Day,” U.S. Department of State, December 6, 2011, http://www.state.gov​ /secretary/20092013clinton/rm/2011/12/178368.htm (accessed November 15, 2015). 68. Ibid. 69. See Memorandum for the Heads of Executive Departments and Agencies, “Presidential Memorandum—­International Initiatives to Advance the Human Rights of Lesbians, Gay, Bisexual and Transgender Persons,” The White House, December 6, 2011, https://www.whitehouse.gov/the-press-office/2011/12/06/presidential-mem​ orandum-international-initiatives-advance-human-rights-l (accessed November 15, 2015); Chris Johnson, “Obama, Clinton Push Int’l LGBT Rights,” Washington Blade, December 6, 2011, http://www.washingtonblade.com/2011/12/06/obama​ -administration-takes-action-on-intl-lgbt-rights/ (accessed November 15, 2015). 70. Michael Lavers, “U.S. to Ban Uganda Officials for LGBT Rights Abuses,” Washington Blade, June 19, 2014, http://www.washingtonblade.com/2014/06/19/u-s-ban​ -uganda-officials-lgbt-rights-abuses/ (accessed November 15, 2015). 71. Michael Lavers, “HRC Joins Global LGBT Rights Initiative,” Washington Blade, February 19, 2015), www.washingtonblade.com/2015/0ww/19/hrc-joins​ -global-lgbt-rights-initiative/ (accessed November 15, 2015). See U.S. Department of State, “Global Equality,” http://www.state.gov/globalequality/ (accessed November 15, 2015). 72. Michael Lavers, “State Department, USAID Host Global LGBT Donor Conference,” Washington Blade, November 13, 2014 (accessed November 15, 2015). 73. Sylvan Lane, “Kerry Establishes LGBT Envoy to Advocate for Rights Overseas,” Boston Globe, February 5, 2015, http://www.bostonglobe.com/news/nation/2015/02/05​ /secretary-state-john-kerry-establishes-new-post-lgbt-envoy-advocate-for-rights​-over​ seas/zW9x9QfPFsBGsnQbAdoOKL/story.html?event=event25 (accessed November 15, 2015). 74. Michael Lavers, “State Department Envoy to Promote Global LGBT Rights,” Washington Blade, February 5, 2015, http://www.washingtonblade.com/2015/02/05​ /state-department-envoy-promote-global-lgbt-rights/ (accessed November 15, 2015); Lavers, “John Kerry Introduces LGBT Envoy,” Washington Blade, February 27, 2015, http://www.washingtonblade.com/2015/02/27/john-kerry-introduces-lgbt-envoy/ (accessed November 15, 2015). 75. Adebisi Alimi, “Why I Oppose the United States’ Special Envoy for LGBT Human Rights,” Daily Beast, October 3, 2015, http://www.thedailybeast.com/arti​ cles/2015/03/10/why-i-oppose-the-united-states-special-envoy-for-lgbt-human​ -rights.html (accessed November 15, 2015). 76. Michael Lavers, “Kerry Raises LGBT Rights with Nigerian President,” Washington Blade, July 22, 2015, http://www.washingtonblade.com/2015/07/22/kerry-raises​ -lgbt-rights-with-nigerian-president/ (accessed November 15, 2015). 77. Sam Levine, “Obama Speaks out for LGBT Rights in Kenya,” Huffington Post, July 25, 2015, http://www.huffingtonpost.com/entry/obama-kenya-lgbt-rights_55b3a​ 478e4b0224d88327486 (accessed November 15, 2015); Norimitsu Onishi, “Obama Kenya Trip Sets off Gay Rights Debate in Africa,” New York Times, July 21 2015, http://www.nytimes.com/2015/07/22/world/africa/africans-to-welcome-obama​ -but-not-a-scolding-on-gay-rights.html (accessed August 29, 2017).

372

Aeyal Gross

78. Ugandan activist Frank Mugisha, for example, said that, thanks to Clinton and others, “we are no longer alone.” Frank Mugisha, “Gay and Vilified in Uganda,” New York Times, December 22, 2011, http://www.nytimes.com/2011/12/23/opinion/gay -and-vilified-in-uganda.html?_r=0 (accessed November 15, 2015). 79. See the distinction Rao draws between Cameron’s and Clinton’s statements. Rao, “On ‘Gay Conditionality’”; Scott Long, “More on Hillary and Barack,” A Paper Bird: Sex, Rights, and the World, December 9, 2011, http://paper-bird.net/2011/12/09​ /more-on-hillary-and-barack/ (accessed November 16, 2015). 80. Karen McVeigh, “Gay Rights Must Be Criterion for U.S. Aid Allocations, Instructs Obama,” Guardian, December 7, 2011, http://www.theguardian.com /world/2011/dec/07/gay-rights-us-aid-criteria?INTCMP=SRCH (accessed November 16, 2015). The New York Times, however, reported that “Caitlin Hayden, the National Security Council’s deputy spokeswoman, said the administration was ‘not cutting or tying’ foreign aid to changes in other nation’s practices.” Steven Lee Myers and Helene Cooper, “U.S to Aid Gay Rights Abroad, Obama and Clinton Say,” New York Times, December 6, 2011, http://www.nytimes.com/2011/12/07/world/united-states-to-use​ -aid-to-promote-gay-rights-abroad.html?_r=2&hp (accessed November 16, 2015). For concerns on “how and why” exactly the United States would monitor and regulate LGBT rights internationally, see Maya Mikdashi, “Gay Rights as Human Rights: Pinkwashing Homonationalism,” Jadaliyya, December 16, 2011, http://www.jadali​ yya.com/pages/index/3560/gay-rights-as-human-rights_​pinkwashing-homonationa (accessed November 16, 2015). See also Rahul Rao’s concerns on the eventual pressure applied by the United States in this regard. Rao, “On ‘Gay Conditionality.’” 81. Long, “More on Hillary and Barack.” For a comparative critical discussion of Cameron’s and Clinton’s statements, see also Adam Kretz, “Aid Conditionality as (Partial) Answer to Antigay Legislation: An Analysis of British and American Foreign Aid Policies Designed to Protect Sexual Minorities,” Vienna Journal of International Constitutional Law 7 (2013): 476–­500. 82. “Healthcare in Uganda”; Philippa Croome, “U.S. Suspends Some Aid to Uganda over Anti-­Gay Law,” Reuters, March 13, 2014, http://www.reuters.com​ /article/2014/03/13/us-uganda-usa-idUSBREA2C1Y120140313#f6T8is6jwDt6p MPF.97 (accessed August 29, 2017); Peter Baker, “Uganda: Anti-­Gay Law Draws Sanctions,” New York Times, June 19, 2014, http://www.nytimes.com/2014/06/20/world​ /africa/uganda-anti-gay-law-draws-sanctions.html (accessed August 29, 2017). 83. John Hudson, “Trump Keeps Obama’s Top Gay Rights Envoy at State Department,” Foreign Policy, February 13, 2017, http://foreignpolicy.com/2017/02/13 /trump-keeps-obamas-top-gay-rights-envoy-at-state-department/ (accessed August 29, 2017); “Trump Administration Leaves LGBTI Envoy Role Sitting Empty—­Despite Claiming They Would Keep It,” Pink News, February 22, 2018, https://www.pinknews​ .co.uk/2018/02/22/trump-administration-leaves-lgbti-envoy-role-sitting-empty​ -despite-claiming-they-would-keep-it/. 84. See Gross, “Homoglobalism.” For a description of these processes, see also Aeyal Gross, “Post/Colonial Queer Globalization and Human Rights,” Jindal Global Law Review 4, no. 2 (2013): 98–­130. 85. United Nations General Assembly, 65th Session (December 21, 2010), A /RES/65/208, http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/65/208 (accessed November 17, 2015). (accessed November 16, 2015).



Gay Governance

373

86. United Nations Human Rights Council, Human Rights, Sexual Orientation and Gender Identity (July 14, 2011), A/HRC/RES/17/19, http://ap.ohchr.org/documents​ /dpage_e.aspx?si=A/HRC/RES/17/19 (accessed November 16, 2015). 87. United Nations Human Rights Council, Report for the United Nations High Commissioner for Human Rights (November 17, 2011), A/HRC/19/41, http://www​ .ohchr.org/Documents/Issues/Discrimination/A.HRC.19.41_English.pdf (accessed November 16, 2015). 88. United Nations Human Rights Council, Report of the United Nations Entity for Gender Equality and the Empowerment of Women on the Activities of the United Nations Trust Fund in Support of Actions to Eliminate Violence against Women (December 5, 2014), A/HRC/29/23, http://www.ohchr.org/EN/HRBodies/HRC​ /RegularSessions/Session29/Pages/ListReports.aspx (accessed November 16, 2015). This report followed a resolution in 2014 (http://www.ohchr.org/EN/Issues/Dis​ crimination/Pages/LGBTUNResolutions.aspx). 89. United Nations Human Rights Council, A/HRC/RES/32/2, http://ap.ohchr​ .org/documents/dpage_e.aspx?si=A/HRC/32/L.2/Rev.1 (accessed August 2, 2016). 90. Long, “More on Hillary and Barack.” 91. See Michael Lavers, “Islamic State Focus of UN Security Council First LGBT Meeting,” Washington Blade, August 24, 2015, http://www.washingtonblade​ .com/2015/08/24/islamic-state-focus-of-u-n-security-councils-first-lgbt-meeting/ (accessed November 16, 2015). 92. Scott Long, “The UN Security Council Debates Gays and ISIS: Why Is This a Bad Idea,” A Paper Bird: Sex, Rights, and the World, August 23, 2015, http://paper​ -bird.net/2015/08/23/the-un-security-council-terrible-idea/ (accessed November 16, 2015). See also Long, “New Killings: ISIS Answers the UN Security Council,” A Paper Bird: Sex, Rights, and the World, August 25, 2015, http://paper-bird.net/2015/08/25​ /new-killings-isis-answers-the-un-security-council/ (accessed November 16, 2015). 93. Scott Long, “New ISIS Execution for ‘Sodomy’: Attention, UN Security Council,” A Paper Bird: Sex, Rights, and the World, September 17, 2015, http://paper-bird​ .net/2015/09/17/new-isis-execution-attention-un-security-council/ (accessed November 16, 2015). 94. Ibid. 95. The Council for Global Equality, http://globalequality.org/ (accessed November 16, 2015). 96. Michael Lavers, “Council for Global Equality Honors Samantha Power in DC,” Washington Blade, October 14, 2015, http://www.washingtonblade.com/2015/10/14 /council-for-global-equality-honors-samantha-power-in-d-c/ (accessed November 16, 2015). 97. For a discussion of the rise of the institutionalization of LGBT claims in national, international, and supranational arenas, as well as the backlash against them, see Paternotte, Tremblay, and Johnson, The Lesbian and Gay Movement and the State, 1. For a discussion of how the rise of LGBT politics has also led governments across the globe to ignite conservative-­homophobic resistance and culture wars against sexual claims, see Manuela Lavinas Picq and Markus Thiel, eds., introduction to Sexualities in World Politics: How LGBTQ Claims Shape International Relations (London: Routledge, 2015), 2. 98. Norimitsu Onishi, “U.S. Support of Gay Rights in Africa May Have Done More Harm than Good,” New York Times, December 20, 2015, http://www.nytimes

374

Aeyal Gross

.com/2015/12/21/world/africa/us-support-of-gay-rights-in-africa-may-have-done​ -more-harm-than-good.html. 99. Ibid. 100. Colin Stewart, “N.Y. Times: Pro-­Gay U.S. Makes Life Worse for Gay Africans,” Erasing 76 Crimes (blog), December 20, 2015, https://76crimes.com/2015/12​/20/n-y​ -times-pro-gay-u-s-makes-life-worse-for-gay-africans/. 101. Michael Lavers, “State Department Defends LGBT Rights Effort in Africa,” Washington Blade, December 22, 2015, http://www.washingtonblade.com/2015​ /12/22/state-department-defends-lgbt-rights-efforts-in-africa/ (accessed August 29, 2017). See also the letter to the editor by Tom Malinowski, Assistant Secretary of State for Democracy, Human Rights and Labor, New York Times, December 29, 2015, http://www.nytimes.com/2015/12/29/opinion/support-for-gay-rights-in-africa​ .html?_r=0 (accessed August 29, 2017). 102. Frank Mugisha, Executive Director, Sexual Minorities Uganda, letter to the editor, New York Times, December 29, 2015, http://www.nytimes.com/2015/12/29 /opinion/support-for-gay-rights-in-africa.html?_r=0 (accessed August 29, 2017).

PA R T I V

POSTCOLONIAL FEMINISTS IN GLOBAL/LOCAL STRUGGLE

This page intentionally left blank

C H A P T E R 15

Governance Feminism’s Others Sex Workers and India’s Rape Law Reforms PRABHA KOTISWARAN

In Governance Feminism: An Introduction, I used the concept of Governance Feminism (GF) to analyze one of the most significant new Indian legislations to address violence against women (VAW), the Criminal Law (Amendment) Act, 2013 (CLA), passed by the Indian Parliament in the wake of the rape and murder of Jyoti Singh Pande in 2012.1 I surveyed Indian feminists’ efforts to amend rape law from 1979 onward to argue in that essay that Indian feminism has entered a governance mode and is today a crucial part of the lawmaking process even if significant feminist demands of the state have not materialized. As Governance Feminism: An Introduction and the Preface to this volume make clear, however, GF is not limited to tracking feminist influence in the corridors of state power; state power extends well beyond the juridical into the discursive or governmental realm. How then do feminists relate to or reconfigure feminism given the shift in the state’s political functions from government to governance whereby the state uses both its juridical and discursive powers to govern its political subjects? I consider this question by examining the Indian legal regimes on sex work and trafficking, because these regimes took birth in the crucible of feminist governmentality and have been assiduously cultivated by GFeminists ever since. Moreover, since the 1990s, sex workers have been subjects of the state’s governmental power exercised through myriad public health initiatives targeted toward HIV prevention. By comparing the politics of criminal law reform that informed the strategies of feminists (on rape, sex work, and trafficking) versus 377

378

Prabha Kotiswaran

that of sex workers’ groups (on sex work), I argue that it is only by studying GF’s “others,” namely, sex workers, that we can fully grasp the political possibilities and futures of GF. In setting up the distinction between GF and its others, I hardly suggest that sex workers are not feminists. Prominent Indian sex workers’ groups draw explicitly on materialist traditions of feminist thinking to reframe “prostitution” in terms of sex work—­a legitimate form of reproductive labor, albeit performed under conditions of capitalist patriarchy, but deserving legal recognition.2 However, sex workers have historically been Indian feminism’s others on two counts: First, most Indian feminists have been reluctant to embrace sex workers’ demands for workers’ rights. Second, unlike feminists, sex workers are a marginalized social group engaging in a highly stigmatized form of labor and have had limited political power and faltering access to state institutions. There is a vast spectrum of voices active in the sex work and trafficking debates in India today (and not all of them embrace feminist politics). Sex workers’ groups draw on materialist feminist thinking and are organized as collectives, trade unions, community-­based organizations, or NGOs providing services to sex workers or some assemblage of these forms. The non–­sex worker constituency, in comparison, is quite varied. It includes feminists within the Indian women’s movement (IWM); Marxist/materialist feminists; neo-­abolitionist/ anti-­trafficking feminist NGOs; and finally nonfeminist neo-­abolitionist/ anti-­trafficking NGOs. I use the term “IWM” to refer to the autonomous phase of the movement that was at its strongest in the 1970s and 1980s, where it sought to be “autonomous”—­in a political sense—­from the prescribed political position of what it saw as oppressively dogmatic, left parties,3 and financially from external, project-­based as well as foreign funding. IWM feminists have articulated an indigenously crafted radical-­ materialist feminist politics on the issue of VAW and have lobbied heavily for statutory law reform in the area of rape, sexual harassment, and domestic violence.4 But they have historically ignored the “prostitution question” at least on the policy front. Marxist and materialist feminists had a strong presence in the IWM and remain an important force in the struggles against VAW. Materialist feminists have been deeply skeptical of the law’s promises and view



Governance Feminism’s Others

379

law reform as an intermediate goal at best rather than a long-­term objective.5 A key materialist feminist institutional player, the All-­India Democratic Women’s Association, views sex work as violence and is on the board of Apne Aap, a radical feminist neo-­abolitionist organization. Neo-­abolitionist NGOs6 are of two types; feminist and nonfeminist. The former is typically persuaded by a radical feminist characterization of prostitution as sexual violence under all circumstances. Apne Aap, for instance, is influenced by Gandhian thought and keen to abolish sex work through raids, rescue, rehabilitation, and the targeting of male demand.7 It has hosted influential Western feminists like Catharine MacKinnon, Janice Raymond, and Gloria Steinem in India, where they have called on the government to adopt the Swedish model to eradicate sex work. Then there are neo-­abolitionist NGOs like Prerana, Prajwala, Shakti Vahini, Gudia, Sanjog, and Bachpan Bachao Andolan (BBA). Their feminist credentials, if any, are unarticulated, but they are opposed to sex work, possibly persuaded by a cultural nationalist and socially conservative politics that seeks to protect the “dignity” of Indian women and children. Some of them have worked closely with the UN Office on Drugs and Crime in India to set up anti–­human trafficking units, which in turn focus on sexual exploitation. All neo-­ abolitionist NGOs are heavily invested in raids, rescue, and rehabilitation and subscribe to a crime control paradigm of trafficking.8 This chapter begins by elaborating on new thinking on governance within and outside legal scholarship. I then offer a brief overview of Indian anti-­trafficking and anti-­sex-work laws. I draw on Partha Chatterjee’s theorization of democratic politics to assess attempts to reform these laws since the 1990s, mapping, in the process, the rise of neo-­abolitionist GF in what Chatterjee calls “civil society” and sex workers’ resistance in “political society.” I show how neo-­abolitionists have advocated for the welfarist and protectionist logic of the anti-­sexwork criminal law by supporting the rehabilitation of sex workers. They have consistently used litigation to become repeat players vis-­à-­v is the executive, coproduced action plans, guidelines, training manuals, standard operational protocols, and welfare schemes with the executive, and they have cultivated their reputation as “experts” to ultimately sit on and lobby several state committees, resulting in legislative successes on trafficking. Sex workers, in comparison, although keen to assert

380

Prabha Kotiswaran

their citizen status as workers, have mobilized the state in what Chatterjee calls political society, and they have used the logic of welfare governmentality to thwart carceral laws that seek to abolish sex work in the name of countering trafficking. Through an exposition of criminal law reform on rape, trafficking, and sex work, all active sites of feminist lawmaking in recent years, I demonstrate the processes by which influential strands of GF relate to their others. I compare the substantially different feminist politics of IWM feminists, neo-­abolitionist NGOs, and sex workers’ groups as well as their dispositions toward state power, the criminal law, and the quite varied regulatory arenas that they inhabit in engaging with the state. I conclude that GF’s others have important lessons to share in terms of rethinking feminist politics and strategies for legal reform.

The Move from Government to Governance This volume seeks to understand the complex lives of feminism in an environment where our ideas of “governance” have radically expanded. A significant inspiration for rethinking governance has come from Michel Foucault’s genealogy of modern forms of governmental knowledge and practice in his Collège de France lectures of 1977–­78 and 1978–­79.9 Halley elaborates on Foucault’s thesis of the governmentalization of the state10 in Governance Feminism: An Introduction to highlight how the sovereign alone does not regulate the conduct of men and that, conversely, feminism has become incorporated into larger forms of governmental reason.11 Scholars like Partha Chatterjee have meanwhile assessed Foucault’s thesis in the postcolonial context. Chatterjee speaks of how the postcolonial state exercises both juridical and discursive power and maps its effects on the political relationship between the state and subjects of governance, particularly these subjects’ aspiration for the promises of citizenship.12 For Chatterjee, the governmentalization of the state means that, in contrast to liberal democratic notions of nationality and citizenship, the construct of the nation is heterogeneous and social; that populations are the actors; that the category of the population, unlike that of the citizen, is descriptive, empirical, and quantifiable; and that the political fraternity consists of a multiplicity of population groups. The legitimacy of the state, meanwhile, is derived from the welfare nature



Governance Feminism’s Others

381

of government function; the mode of reasoning is cost–­benefit analysis; the apparatus used is surveillance; and governance is a matter of administrative policy to be effected by experts. Chatterjee argues that, when confronted with populations that engage in illegal activities for a living, live in illegal squatter settlements, or make illegal use of water and electricity or other state services; the state neither can treat them simply as criminals, nor can it treat them on par with civil society organizations. Agencies deal with these associations not as bodies of citizens but as instruments for the administration of welfare to marginal and underprivileged population groups. There is evidence, he argues, that such populations also imbibe the language and modes of argumentation suitable to this mode of governance and conduct politics in the realm of “political society.” Civil society in Chatterjee’s scheme then becomes a limited sphere of action in which the elite, a small section of culturally equipped citizens, engages with the state. Civil society stands in contrast to political society; in it the state secures its legitimacy in relation to subaltern population groups through welfare governmentality.13 Mobilization by population groups, although fragile and contingent, he notes, is, however, resolutely political. Even as the state is governmentalized, its monopoly over more conventional forms of regulation is far from complete. Scholars of transnational law show that with the advent of globalization, complex transnational problems (such as trafficking, climate change, food safety, commercial arbitration, Internet governance, and terrorism, to name a few) require coordinated responses across borders. This necessitates myriad new forms of governance, including “soft law” mechanisms, self-­binding norms, codes of conduct, best practices, administrative practices, pragmatic problem solving, self-­regulation, reputational enforcement, fiscal or market incentives, command and control regulation, and prescriptive and diagnostic indicators,14 thereby shifting the scale at which legal pluralism15 operates and leading to what transnational socio-­legal scholars term as “global legal pluralism” and “transnational legal pluralism.”16 The sovereign’s prized possession, the instrument of “formal” state law is then only one tool among many others, which are wielded by nonstate actors. The anti-­trafficking regime is one such transnational legal order, which started out with the 2000 UN Protocol to Prevent, Suppress and Punish Trafficking in

382

Prabha Kotiswaran

Persons (also called the Palermo Protocol), a widely ratified international legal instrument,17 but includes equally, if not more, influential regimes of governance, including reports that rank states, trafficking indicators, global slavery indices, and corporate codes of conduct ensuring supply chain transparency.18 Appreciating the changing nature of governance outside of formal state law on a transnational scale helps make sense of the triggers for domestic law reform on trafficking and, consequently, the opportunities for domestic nonstate actors including feminists and sex workers’ groups from civil society and political society, respectively (in Chatterjee’s terms), to achieve their political goals.

India’s Anti-Sex-Work and Anti-­trafficking Legal Regimes This section offers an overview of India’s anti-­sex-work and anti-­ trafficking legal regimes. I should start with a word here about the relationship between these regimes. Sex work has long been used in ideological and legal senses as equivalent to trafficking. Although anti-­ trafficking law has in the past two decades developed to include various forms of exploitation and is no longer limited to sex work or trafficking for sex work, the two legal regimes remain closely interrelated. In the Indian context, anti-­trafficking law today encompasses the Immoral Traffic Prevention Act, 1986 (ITPA); the Indian Penal Code, 1860 (IPC); and several labor laws enacted in the 1970s. India has long had an anti-­sex-work criminal law, the Suppression of Immoral Traffic in Women and Girls Act, 1956 (SITA), passed pursuant to its ratification of the 1949 UN Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, which advocates abolishing sex work.19 SITA is also one of the earliest Indian laws born out of GF. In a constitutional ethnography of SITA, legal historian Rohit De reveals how women leaders of the Indian nationalist movement, elevated to key positions in the newly independent state, worked tirelessly both from within the government (as architects of a massive social welfare bureaucracy) and from outside (through NGOs) to pass SITA.20 They did not wish to criminalize the sex worker herself, who in their view was a victim of economic circumstance and whose freedom to practice an occupation of choice



Governance Feminism’s Others

383

was protected by the Constitution.21 Feminists instead prioritized rehabilitation over penalization. This was to be operationalized by female police officers and state-­run homes staffed by female social workers. The immediate postcolonial moment helped feminists move from “an era of agitation to one of endeavor”22 within new state institutions. As such, this is one of the earliest examples of a GF victory with elite feminists assuming a paternalist position toward sex workers. Sex workers resisted by challenging the constitutionality of SITA with little success.23 The SITA was amended in 1986 to enhance certain penalties and renamed the ITPA; the constitutionality of several of its positions were settled by then. Several aspects of sex work are criminalized under the ITPA, although the sale of sex per se is not criminalized. Section 5 of the ITPA criminalizes procurement for sex work, with or without the consent of the person. Trafficking is thus conflated with sex work. The ambiguous legislative intent of the ITPA in permitting sex work but not acts essential for its performance vests enormous levels of discretion in the police. When the police implement the ITPA and related criminal laws such as the IPC, as well as specialist criminal laws (against the use of drugs; against antisocial behavior), they use it disproportionately to arrest and prosecute sex workers rather than other exploitative stakeholders in sex markets. Sex workers, in turn, recover the costs of incarceration by performing additional sex work. Most often, however, the police engage in rent-­seeking behavior, which means they expect payoffs (monetary and sexual) from sex workers in return for desisting from implementing the ITPA and related criminal laws. The ITPA is like an ever-­present sword dangling over sex workers’ lives, undermining their economic bargaining power in the sex industry. Thus, the sexual abuse that the state both tolerates and inflicts under the ITPA on sex workers is considerable. The IPC has several provisions regarding trafficking relating to procuration, importation, buying and selling minors for prostitution, unlawful compulsory labor, and habitual dealing in slaves. Several of these are of colonial vintage; Section 370, a stand-­a lone offense on trafficking was introduced in 2013. On the labor law front, in the 1970s, Indian legislators, keen to live up to the aspirations of the Indian Constitution, passed several social welfare laws on bonded labor, contract labor, and interstate migrant work, all forms of labor exploitation that

384

Prabha Kotiswaran

are now commonly included under the term “trafficking.” Although I do not discuss these laws here, the bonded labor law and its mechanisms to identify, rescue, and rehabilitate bonded laborers is an early example of an exercise in welfare governmentality. Importantly, despite a rich history of labor organizations campaigning against bonded labor, interstate migrant work, and contract labor, these organizations were reluctant to adopt the “trafficking” framework because they associated it with sex work.

Neo-­abolitionists and Sex Workers Stake Claims on the Governmentalized State Starting in the early 1990s, both neo-­abolitionist NGOs and sex workers’ groups made demands of the governmentalized state.24 Between 1992 and 2009, these interactions were influenced by two competing international trends, namely, HIV prevention and the adoption of the Palermo Protocol. Since 2009, however, the focus on HIV prevention has waned while the international pressures to address trafficking persist.

Sex Workers in the Shadow of the HIV Pandemic: Mobilizing between 1992 and 2005 With the discovery of HIV in India in the mid-­1980s, international funding targeting sex workers as a high-­risk group started circulating in the developing world, rendering sex workers as biopolitical subjects who engaged in self-­care to ward off HIV while also surveilling each other on behalf of the state.25 HIV prevention funding, however, also spurred mobilization. Sex workers’ groups seized on this political opportunity and resources starting in 1992. By 1997, the Kolkata-­based Durbar Mahila Samanwaya Committee (DMSC), a 60,000-­member-­strong sex workers’ organization, along with sex workers and NGOs nationwide, formed the National Network of Sex Workers (NNSW). Since the mid-­1990s, the National Commission for Women (NCW) has been committed to abolishing sex work; this has become the Indian state’s default policy on sex work. There was, however, no move to amend the ITPA. Public interest litigation (PIL) initiated by activist Supreme Court lawyers elicited from the state the 1998 Plan of Action to Combat Trafficking and Commercial Sexual Exploitation of Women



Governance Feminism’s Others

385

and Children (Plan of Action). The Plan of Action called for the further criminalization of customers, traffickers, pimps, brothel keepers, and colluding family members but stopped short of decriminalizing sex workers themselves. Notably, although the state was hostile to appeals for decriminalization (even of sex workers), much less workers’ rights, the Plan of Action recommended special benefits for sex workers in housing, health, and education as members of “economically weaker sections of society.” This is a textbook case illustrating Chatterjee’s thesis of welfare governmentality. In the following years, neo-­abolitionist NGOs like Prajwala, Prerana, and Shakti Vahini actively undertook PIL, assisted by liberal locus standi requirements. Where they struggled to get the Parliament to legislate on sex work, they instead used the courts to hold a weak and understaffed executive (and ineffective and corrupt police) accountable. They engaged in the realm of “civil society,” in Chatterjee’s terms, to fight for the rights of the weak. They demanded the prosecution of exploiters26 and traffickers, the framing of a Victims’ Protection Protocol, guidelines for proper rehabilitation,27 the amelioration of subhuman conditions in rescue homes,28 the provision of compensation to victims, and the implementation of the Plan of Action.29 They were soon repeat players before the Supreme Court and the Delhi and Mumbai High Courts. Courts responded by directing the executive to formulate plans for rehabilitation. They also facilitated the partnership between neo-­abolitionist NGOs and the police in raid-­and-­rescue operations. These early writ petitions laid the foundation for continuous monitoring of the executive by courts for over a decade, leading to the creation of several expert advisory bodies. Sex workers’ groups, meanwhile, were reluctant to engage with the courts. Their relationship with the state is best captured by DMSC’s metaphor of “shield not sword.” Like other social movements, they viewed the law as neither omnipotent nor as irrelevant. They saw the law as ineffective in addressing sex workers’ most pressing concerns, namely, social stigma and harassment by police and local antisocial elements. Sex workers thus pursued a “politics of rights” whereby rights were viewed as a contingent resource, and litigation as most effective when used in conjunction with political protest.30 Sex workers’ groups did not privilege litigation or lawyers; DMSC and NNSW were in fact litigation-­shy. Sex workers groups instead negotiated with the state in

386

Prabha Kotiswaran

political society. Sex workers fashioned themselves as “day laborers,” as “needful,” and as “people living below the poverty line” to convince local authorities to include them in welfare programs. Even when demanding workers’ rights, DMSC presented sex workers as belonging to the “unorganized sector” alongside rag pickers, street vendors, and scavengers, all population groups that have been the focus of recent governmentalizing state policies.

The International Push for Ending Demand: Sex Workers as a Population Group Although an international legal regime on the “traffic” of women and children into prostitution had existed since the turn of the twentieth century, the neo-­abolitionist regulatory impulse against sex work gathered momentum worldwide by 2000 with the negotiation that year of the Palermo Protocol. After the Protocol’s adoption, several states initially narrowly targeted its enforcement on sex work, in turn conflating sex work with trafficking. The Swedish model of criminalizing customers of sex workers while decriminalizing sex workers became popular. At the same time, the U.S. State Department under the Victims of Trafficking and Violence Protection Act of 2000 started to rank governments annually in its Trafficking in Persons (TIP) Reports in terms of their actions to prevent, prosecute, and punish trafficking. The United States withheld “nonhumanitarian, non-­trade-­related” aid from the worst offenders.31 Consequently, governments, particularly in the global South, scrambled to amend their anti-­sex-work laws in order to move higher up in the TIP rankings, with India becoming a playground of sexual humanitarianism.32 In 2004, the TIP Report downgraded India from Tier 2 to the Tier 2 Watch List, a severe demotion that essentially threatened India with Tier 3 placement, a dire prospect. In response, in 2005, the then Department for Women and Child Development proposed to amend the ITPA to severely criminalize customers of trafficked sex workers; “trafficking” was defined broadly. NNSW organized a rally of four thousand sex workers protesting the amendment to Parliament. Still, the Ministry of Women and Child Development (MWCD) introduced the amendment in Parliament in May 2006. NNSW highlighted before individual cabinet ministers the negative public health implications of criminalizing customers. Consequently, the Home Ministry but not the



Governance Feminism’s Others

387

Health Ministry supported the amendment, leading to its lapse in Parliament in March 2009. Thus, the very basis on which sex workers constituted a population group in Chatterjee’s terms for a governmentalized state keen to prevent the spread of HIV ultimately helped them oppose the increased criminalization of sex work.33

Back to the Courts, Sex Workers Included Soon after the amendment to the ITPA was thwarted, in February 2011, the Supreme Court in the Karmaskar case, involving the murder of a sex worker, directed central and state governments to prepare rehabilitation schemes for “physically and sexually abused women commonly known as prostitutes.”34 An advisory panel, which included DMSC, submitted its report in September 2016 demanding the repeal of several provisions of the ITPA, the legal recognition of sex work, the extension of benefits (for example, ration cards, identity cards) to sex workers and their children, and the creation of a new scheme for sex workers wanting to be rehabilitated.35 Sex workers’ inclusion in an expert body was unprecedented and illustrates how actors in political society can sometimes flicker in and out of civil society. A new set of neo-­abolitionist NGOs meanwhile started to litigate, as elite members of civil society often do. Apne Aap filed a writ petition in 2012 before the Patna High Court to pressure the state of Bihar to enforce the ITPA by raiding, rescuing, and rehabilitating sex workers while also prosecuting traffickers.36 The child rights’ organization BBA, founded by Kailash Satyarthi (awarded the Nobel Prize in 2014) and rebranded as an anti-­slavery organization, had rescued and rehabilitated thousands of children working in embroidery sweatshops, leather goods factories, and small hotels. Litigation had always been a key strategy for BBA. Its successes included a 2011 Supreme Court order prohibiting the employment of children in circuses and directing raids to rescue and rehabilitate them,37 a 2012 Delhi High Court order directing the prevention of child trafficking and the registration of placement agencies in Delhi,38 and a 2012 Supreme Court order directing the mandatory filing of a first information report for a missing child based on a presumption of his or her abduction or trafficking.39 Much like the neo-­abolitionist NGOs that litigated in the 1990s, Apne Aap and BBA assisted the executive in setting up various specialist state agencies (like Special Juvenile Police Units and children’s

388

Prabha Kotiswaran

shelter homes), drafting operating protocols for their functioning and on-­the-­ground work rescuing and rehabilitating trafficked persons. Repeat PIL before attentive courts that prodded the executive into action, meant that, over time, the executive came to heavily rely on NGOs who were the first port of call when the state needed experts for enacting legislative reform. The governmentalized postcolonial state thus became an open site for the influence of neo-­abolitionist NGOs.

The Delhi Rape Case: The Verma Committee as a Site of State Feminism and the Uptake of Neo-­Abolitionism In May 2011, India—­which had signed the newly minted Palermo Protocol in December 2002—­finally ratified it and was returned to the Tier 2 List of the U.S. TIP report; a new anti-­trafficking law was thus on the anvil. In September 2012, the MWCD constituted an inter-­ministerial committee that also comprised the NCW and Delhi-­based NGOs, including the Lawyers Collective and two neo-­abolitionist NGOs, Shakti Vahini, and STOP Trafficking & Oppression of Women & Children (all actors in civil society in Chatterjee’s sense of the word). The terms of the committee associated trafficking exclusively with sex work: The Protocol also casts an obligation on the State Parties to undertake measures for prevention of trafficking in persons. The premier legislation for combating trafficking for commercial sexual exploitation is the ITPA, and a duty is cast on the Government to examine the provisions of ITPA, 1956 to make the legislation suitably strengthened and compatible with the commitment inherent in the UN Protocols.40

Interestingly, the IWM’s proposal in 2010 for a draft bill on rape, based on an expansive theory of sexual violence,41 made no mention of sex work or trafficking, both being typically low-­priority issues for the IWM.42 Neither did the government, for its part, propose any anti-­ trafficking offenses in the Criminal Law (Amendment) Bill on rape presented in Parliament on December 4, 2012. Days later, Jyoti Pande was raped and murdered. The government appointed the Verma Committee,43 which proposed criminalizing the full range of acts that feminists designated as sexual violence and also proposed criminalizing trafficking and employing a trafficked person.



Governance Feminism’s Others

389

What explains the Verma Committee’s inclusion of trafficking where IWM feminists did not lobby for it? The vacuum left by IWM feminists on trafficking was filled by neo-­abolitionist NGOs.44 A Committee member, Gopal Subramaniam, had as solicitor general represented the government on the BBA case of children in circuses and demonstrated familiarity with Catharine MacKinnon’s work. The Committee also thanked an American radical feminist—­Diane Rosenfeld—­ for her contributions to their deliberations. Consequently, the second longest chapter in the Verma Committee Report (after rape) dealt with trafficking. The report claimed that missing children were trafficked into sex work, which was later justified as voluntary prostitution. Their trafficking set the climate for “a rape culture.” 45 Radical feminists routinely make these arguments, conflating trafficking with trafficking for sex work and with sex work itself. To eliminate trafficking, then, sex work had to be eradicated. Also, “prostitution” for them is paradigmatic of sexual violence against women, rape being only one manifestation.46 By focusing on missing children and their unfolding life cycle whereby they are trafficked into sex work and accept it into adulthood, the report eliminated the possibility of consensual adult sex work and elided the difference between adults and children as well as between sex work and trafficking. There were other vignettes of neo-­abolitionist reasoning in the Verma Committee report suggesting that the surest way to eliminate sexual subordination was to avoid sexual activity altogether. Although trafficking had historically assumed low priority for the IWM, neo-­abolitionist NGOs prioritized it before the Verma Committee making it a central part of rape reform, which had long been the IWM’s bailiwick. There should be little surprise, then, that the Committee proposed a new trafficking offense that did not distinguish trafficking from voluntary sex work. Predictably, IWM feminists offered no sophisticated response to this recommendation; they instead welcomed the report as signaling a paradigm shift in countering VAW. The Criminal Law Ordinance, 2013, in fact adopted the Committee’s recommendation and defined “exploitation” in the definition of trafficking to include prostitution whether performed voluntarily or not. Ironically, at a time when IWM feminists were decrying the Ordinance for other reasons, BBA and Apne Aap welcomed it. It was only when

390

Prabha Kotiswaran

NNSW protested that Committee members clarified that they meant to exclude voluntary sex work from trafficking.47 Neo-­abolitionist NGOs, however, fought hard to ensure that the original recommendations of the Verma Committee were included in the CLA.48 Ultimately, section 370 of the CLA, which replaced the Ordinance and criminalized trafficking, did not conflate trafficking with prostitution.49 Neo-­abolitionist NGOs, however, took credit for influencing the Verma Committee into criminalizing trafficking under the IPC.50 Significantly (and this relates to GF’s ability to speak for male interests), although Section 370 mirrors the Palermo Protocol’s definition of trafficking, covering trafficking for sex work and other labor sectors, it dropped two key terms. The first was “an abuse of a position of vulnerability,” which could be interpreted broadly to cover any economic or social coercion. The second was “forced labor,” already interpreted expansively by the Supreme Court to include labor paid with less than the minimum wage.51 Moreover, the Criminal Law Ordinance proposed to criminalize the activities of anyone who engaged trafficked persons irrespective of the sector in which they worked, yet section 370A criminalized only those who engaged trafficked persons or minors for sexual exploitation, not users of trafficked persons in other sectors. This suggests the continued influence of neo-­abolitionist NGOs and their need to single out prostitution in a larger universe of severely exploited and trafficked labor performed in households, construction sites, rice mills, brick kilns, factories, and farms.

Neo-­abolitionist GF and the Push for a New Law on Trafficking In the post-­CLA phase, international pressure to pursue robust anti-­ trafficking laws and policies persists. Alongside U.S. TIP Reports, mega-­NGOs funded by philanthrocapitalists,52 such as the Walk Free Foundation, rank countries on their anti-­trafficking efforts through the Global Slavery Index (GSI). Of the 45.8 million victims of modern slavery around the world,53 India is said to have the highest absolute numbers of “slaves”—­around 18.3 million. The Freedom Fund’s CEO Nick Grono even claimed that the GSI 2016 drove the MWCD to propose the Trafficking Bill, 2016.54 As appealing as this suggestion is, several domestic triggers preceding the GSI 2016 pushed the MWCD to propose a new anti-­trafficking law.55



Governance Feminism’s Others

391

In particular, a 2004 petition filed by Prajwala before the Supreme Court asking for a “victim protection protocol” for victims of commercial sexual exploitation came alive.56 The National Legal Services Authority (NALSA), originally impleaded in the case in 2005, now instituted a new committee with judges and civil society members, all neo-­abolitionist NGOs including BBA, Shakti Vahini, and Prajwala. NALSA submitted its report in August 2015 making several recommendations for an anti-­trafficking legislation.57 The NALSA report bears the imprint of the neo-­abolitionist rhetoric of members like BBA (for example, establishing the link between missing persons and trafficking). Importantly, the report acknowledged the distinction between voluntary and trafficked sex work and called for protecting the dignity and rights of voluntary sex workers. While this is a concession to sex workers’ demands, the report, in fact, defined sexual exploitation broadly (going beyond physical abuse to sexual images) and sought the progressive eradication of sex work through voluntary rehabilitation schemes.58 On receipt of the NALSA report, and MWCD’s assurance that it would legislate on trafficking, the Supreme Court disposed of this long-­standing petition. The MWCD convened a new committee in November 2015 with representatives from various ministries and the same neo-­abolitionist NGOs as in the NALSA committee59 to propose comprehensive anti-­ trafficking legislation.60 The Trafficking Bill, 2016, based on the NALSA report, was made public for consultation in May 2016, and several versions appeared between 2016 and 2018. The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 was recently passed by the Lower House of Parliament and will be placed before the Upper House. Like the 2016 version, the 2018 Bill entrenches a classic raid–­ rescue–­rehabilitation model, alongside a robust criminal law system with stringent penalties, reversals of burden of proof, provisions for forfeiting traffickers’ assets, and an adjudication machinery with special courts and special public prosecutors. It also envisages a powerful surveillance mechanism in the form of the National Anti-­Trafficking Bureau. The Bill introduces a new offense of trafficking, applicable to trafficking for certain purposes (bonded labor, forced labor, bearing a child, marriage, begging); trafficking through certain means (administering hormones); when trafficking results in grievous harm (pregnancy, disability); and when it involves trafficking a pregnant or

392

Prabha Kotiswaran

disabled woman.61 Offenses are cognizable and non-­bailable.62 The bill’s focus on rehabilitation is perplexing, as protective homes under the ITPA, at best, have been ineffective (causing women to escape and return to sex work)63 and, at worst, have facilitated sexual abuse. Importantly, the bill does not repeal the ITPA or labor laws on bonded labor, making the relationship between them unclear.

GF Meets Its “Others” The preceding pages make clear how neo-­abolitionist NGOs have become highly influential in shaping the Indian state’s approach to the regulation of sex work and trafficking. The state was predisposed toward abolition, given that the NCW since the mid-­1990s advocated for the increased criminalization of all stakeholders in the sex industry, except sex workers themselves. This approach was only strengthened by neo-­abolitionist NGOs, which did not hesitate to resort to PIL as a way of challenging executive and legislative inaction in the face of what they viewed as the extensive trafficking of women and girls and their inadequate rehabilitation. Not only have neo-­abolitionist NGOs persisted with litigation; they have allied with like-­minded child labor groups such as BBA. Many of their cases from the last decade have progressed through the Indian court system and are today bearing outcomes by way of policy recommendations; the NALSA report is a case in point. The repeat-­player experience of neo-­abolitionist NGOs within the judicial system gave them multiple levers to pressure the executive into action, and their familiarity with state agencies (often defendants in the litigation) meant that the executive had a ready list of experts to call on when it wanted to pass new laws. This is how key neo-­abolitionist NGOs have been appointed to every single expert committee on trafficking, whether court-­d irected (for example, the Central Advisory Committee, or NALSA committee) or set up by the executive of its own initiative (for example, MWCD’s inter-­ministerial committee). Thus, neo-­abolitionist NGOs, feminist or otherwise, have assumed increasingly influential roles in deciding anti-­trafficking law and policy. We thus have a neo-­abolitionist GF firmly in place. Neo-­abolitionist GF is, however, not the only GF in play. As I have shown in Governance Feminism: An Introduction, IWM feminists were influential in lobbying for rape reform through their increased reliance



Governance Feminism’s Others

393

on criminal law, deep commitment to a highly gendered reading of sexual violence, and a diluted oppositional stance vis-­à-­v is state power.64 Where feminists were earlier an outsider social movement protesting against state policies, today they are a crucial part of the lawmaking process; several CLA provisions on rape can be traced back to feminist demands. The state, in turn, is receptive to many feminist ideas. Notably, given the historical association of trafficking with sex work—­an issue riddled by intense feminist polarization both internationally and in India—­IWM feminists largely ignored the problem of trafficking, as they had historically ignored sex work.65 Their absence generated a vacuum that has been occupied by neo-­abolitionist NGOs. The Verma Committee became the site of confluence for IWM GFeminists and neo-­abolitionist GFeminists who pursued two parallel tracks of advocacy on rape and trafficking, respectively. As I have shown, neo-­abolitionist GF had unparalleled access to the Verma Committee—­arguably even more than IWM GF and to the exclusion of sex workers’ groups. So whereas “trafficking” had not been on the IWM feminists’ agenda at all, when it came to rape reform, it was suddenly catapulted to the heart of the Verma Committee’s deliberations. Consequently, a neo-­abolitionist formulation of all sex work as trafficking, which needed criminalizing, made its way into the Verma Committee’s recommendations. It was only when sex workers’ groups objected that IWM feminists lent them their support in obtaining a retraction from the Verma Committee.66 This incident thus problematizes IWM GF’s ability to accurately represent anything as coherent or comprehensive as “women’s interests.” Still, where IWM GF harbored blind spots on sex work, IWM feminists’ ambivalence toward sex workers’ demands for workers’ rights was key to developing political empathy rather than a rigid, moralistic response. Although neo-­ abolitionist legal reform was warded off eventually, the differences between the sexual politics of neo-­abolitionist groups, IWM feminists, and sex workers’ groups and their respective dispositions toward criminal law reform are dramatic, with crucial implications for feminist projects for law reform. I focus on these next.

Feminist Politics In Governance Feminism: An Introduction, I argued that, even as feminist struggles around the world gain traction within their respective

394

Prabha Kotiswaran

governments and find pathways to governance, their distinct political contexts and mobilizational histories mean that not all GFs are the same; we can contemplate “varieties” of GF. In India, for instance, GF cannot be reduced to American-­style radical feminism. Neo-­ abolitionist GF in India undoubtedly demonstrates many key arguments of American radical feminists, as evident in the Verma Committee report. However, not all neo-­abolitionist NGOs adopt all radical feminist arguments wholesale; Apne Aap is one of the few neo-­ abolitionist NGOs that calls for ending male demand for sex work; others like BBA and Shakti Vahini do not.67 Several neo-­abolitionist NGOs’ calls for ending sex work are also motivated by a culturally nationalist, socially conservative, and paternalist politics. In fact, in 2018, BBA strongly advocated for the passage of the Trafficking Bill while Apne Aap campaigned to have it referred to a parliamentary committee for review, given its mechanisms for extensive surveillance and the absence of an aggravated offense of trafficking for sexual exploitation. With respect to IWM GF, a strong tradition of leftist thought and politics renders it a complex amalgam of radical feminism and materialist feminism. On rape, despite being rooted in a strong tradition of materialism, IWM GF has over time inched toward a radical feminist analysis and redefined this discursive space more broadly in terms of anti-­female sexual violence alongside a reliance on the criminal law to address it. In the absence of a vision of desirable sex, casting the net of sexual violence wide runs the risk of entrenching normative visions of good sex/bad sex. This slippery slope is played out in the Verma Committee report, when in its condemnation of patriarchal infliction of sexual abuse, it proposes clamping down on any activity with a sexual overtone lest it result in aggravated sexual assault.68 GF may not desire this but appears willing to take the risk to counter sexual violence. Note, however, that radical feminism and materialist feminism are not necessarily opposed to each other. Animated by deeply structuralist tendencies, they borrow extensively from each other.69 A materialist feminist political past is indeed the reason why Indian feminists have consistently not intervened on sex work.70 Their deep ambivalence is informed by radical feminist resistance to the promotion of the rights of sex workers because they view sex work as abhorrent. However, their materialist feminist instincts remind them of the grip



Governance Feminism’s Others

395

of capitalist patriarchy over women with constrained livelihood options. They therefore refrain from reaching for the criminal law to abolish sex work, unlike American radical feminists (and neo-­ abolitionist GF) who spearhead end-­demand campaigns despite their adverse consequences for sex workers. Sex workers, meanwhile (and this is particularly true of DMSC), draw on a strong leftist and materialist feminist political tradition. They recognize the constrained nature of their “choice” to do sex work under capitalist patriarchy and consistently highlight, much as socialist feminists did, the marriage/sex work continuum in challenging the social and legal treatment of sex work as exceptionally harmful.71 In other words, they resist attempts to treat sex work as harmful on a different register than, say, compulsory marriage. Where they differ from GF is that they view sex work as work, which—­t hey claim—­a lso meets women’s need for sex,72 and call for a theory of pleasure just as Marxism offered an analysis of labor and production.73 Closely related to their feminist politics is how neo-­abolitionist GF, IWM GF, and sex workers’ groups (relegated to political society) account for the interests of men. For neo-­abolitionist GF, men are the root cause of the problems of prostitution and trafficking. Apne Aap has consistently maintained that prostitution and trafficking can be abolished if the full range of male stakeholders in the sex industry, including traffickers, pimps, brothel keepers, and customers, are criminalized. For IWM GF, meanwhile, the interests of men (in the context of rape) as perpetrators of VAW are accommodated within a liberal legal paradigm of fairness in the criminal trial.74 Men’s status as survivors of violence, in contrast, is legible only through a complicated displacement of males as “persons other than women” and their simultaneous assimilation, if needed, as social women. These feminists have remained strongly committed to the male–­female dyad to theorize patriarchal sexual violence and cordon off anti-­female sexual violence from gender-­based violence. Thus, IWM feminists recognized male interests only so long as they did not contaminate the interests of females. For sex workers, men figure prominently. Much to the embarrassment of feminists, far from problematizing male sexual needs, sex workers reiterate assumptions about the inevitability and irrepress­ i­bility of male sexual desire, which, if unchecked, would jeopardize ­women’s safety. In fact, Jameela, the first Indian sex worker to write an

396

Prabha Kotiswaran

autobiography, compares sex workers with scavengers: that just as no one demands scavengers’ rehabilitation as this will diminish public hygiene, so also sex workers clean society of sex-­deprived men who otherwise would pinch and prod women on the sly.75 Being sex radicals (evident in the slogan “We want bread. We also want roses!”76), sex workers wish to destabilize the hierarchies of acceptable sexual practices77 and accept the free exercise of sexual choice whether it be for pleasure, livelihood, or procreation. And they call for sexual diversity outside the folds of hetero-­patriarchal marriage and family. Hence, they are attuned to the sexual needs of disabled, single, and migrant men who come to them. They desire men to meet sex workers’ own sexual needs.78 Criminalizing men thus adversely affects sex workers every single time. The erotic landscape, and with that an accounting of male interests, differs quite dramatically for GFeminists and sex workers.

Disposition toward Law Reform As we have seen, neo-­abolitionists (GFeminists included) are deeply invested in criminal law reform. They view the gap between the law on the books and in action merely as a problem of inefficient and corrupt governance. They believe that an ineffective state machinery can be activated through pressure from the courts and NGOs alike and that enforcement of the law can be enabled, routinized, and made effective through various means, including standard operating procedures, best practices, and the like. Neo-­abolitionist NGOs are confident that the state can rescue and rehabilitate sex workers partly because they themselves successfully undertake these functions. IWM GF, in comparison, has also invested heavily in law reform as a movement goal. Indeed in 2012 and 2013 alone, long-­pending legislation on children’s sexual exploitation, rape, and sexual harassment was passed in part because of support from the IWM.79 However, IWM GF differs from neo-­abolitionist GF in that IWM feminists are conscious of the fact that the state can be weak and ineffective, capable of looking the other way when women are abused and even coercing rape survivors into settling their cases or committing suicide from continued harassment. IWM feminists nevertheless believe that the state must and can be held accountable; hence, they reach out for more and better criminal law.



Governance Feminism’s Others

397

Sex workers, meanwhile, experience state law itself as abusive. They have a deeply oppositional stance toward every aspect of the criminal law, particularly the ITPA, even though it criminalizes stakeholders in sex work, including landlords and brothel keepers, who routinely exploit sex workers. In fact, in protest marches against the 2005 amendment to the ITPA, DMSC routinely enacted a gallows scene where the noose of the ITPA was around the neck of a sex worker, dressed as a prisoner. Consequently, sex workers, as I have shown, have had little interest in law reform and have shied away from even conventional legal strategies for fear of a negative judicial precedent. Even their recent efforts at litigation have been closely inter-­twined with political strategizing. Whether in 2005 or in 2013, they instrumentalized law as a “shield” against neo-­abolitionist proposals rather than as a “sword” to further their rights as workers. They also remained outsiders to the lawmaking process. Thus, GFeminists (neo-­abolitionist and IWM) used law to oppose VAW while sex workers have deployed the very same advocacy opportunities to resist the violence of the law.80

Conclusion To conclude, the anti-­rape and anti-­trafficking campaigns paint a picture of a thoroughly governmentalized Indian state in which civil society actors infiltrate state power at various levels of governmental function. IWM GF operates at a high level of political decision-­making, including through sites of state feminism, such as commissions, committees, expert bodies like the NCW, the National Human Rights Commission, the MCWD, the Law Commission of India, and the Verma Committee. In these encounters, feminists petition the state, although they are not always embedded within these groups as appointees. They may not even have all their demands met. Notably, they have invested in statutory law reform rather than litigation. Neo-­abolitionists (GFeminists included) meanwhile actively interact with the state in various spheres. These include engaging the state through litigation; collaboration outside the courtroom at a micro level with local state functionaries, including the police, district magistrates, anti–­human trafficking units, and children’s welfare committees; participation in expert bodies; and the drafting of statutes. Thus, they petition the state but importantly also work alongside and within it.

398

Prabha Kotiswaran

Invoking Chatterjee’s theory of political mobilization, we could think of IWM GF and neo-­abolitionist GF as respectable citizen groups who realize their political selves by occupying the elite sphere of civil society. Sex workers’ groups, in contrast, operate in political society where, unsure of the promises of liberal citizenship and always at the receiving end of the brutal violence of the state’s juridical powers, but also deeply exposed to its softer discursive power through HIV prevention projects (entailing the surveillance and management of their bodies in the interests of ensuring public health),81 they are reluctant to rely on the state or the law. As subaltern citizens,82 they have a highly political yet contingent relationship to state power and, more often than not, have no seat in the theaters of state power, so they instead leverage their status as a high-­risk population group. This is how they managed to thwart the 2005 amendment, which sought to criminalize customers of sex workers. However, this does not mean that sex workers have no voice in the lawmaking process. The very factors that launched neo-­ abolitionist NGOs into court-­appointed expert committees enabled DMSC also to participate as a member in the Supreme Court–­appointed committee in the Karmaskar case; this was the only committee with sex worker representation. Further, leading up to the CLA, sex workers’ groups had to align with IWM feminists to pressure the Verma Committee to retract its position on sex work. Political alliances straddling civil society and political society are thus possible, and sex workers’ groups carry out their fragile political work as they move fluidly between civil and political society. As Chatterjee himself concedes, “political society cannot exist autonomously of civil society.”83 What, then, are the lessons that we can learn from the complex interactions between neo-­abolitionist GF, IWM GF, and sex workers’ groups? My account of GF’s “others” has implications for our understanding of both feminism and governance. Sex workers help us problematize GF’s attachment to the criminal law. They help untether feminism from an exclusively gendered script of sexual violence and take into account the interests of men while helping us reimagine new forms of political mobilization.84 Comparing the role of GF in Indian anti-­rape and anti-­trafficking campaigns is also a cautionary tale for feminists, urging us to break down assiduously cultivated policy and discursive silos between rape and trafficking when engaging the state. Not only is this necessary to puncture the law’s own patriarchal logic,



Governance Feminism’s Others

399

which views certain categories of women as deserving protection from rape and other “unrapeable” women (namely, sex workers) as needing rescue and rehabilitation, we need to also appreciate how, in the name of protecting women, the state actively transposes highly carceral regulatory techniques from one criminal law (the CLA) to another (the 2018 Trafficking Bill). My case studies also help draw attention to the complex regulatory universe that GFeminists navigate. While IWM GF has focused inordinately on statutory law reform and the enforcement of criminal law, neo-­abolitionist GF has tried to influence the full gamut of regulatory possibilities, whether it be statutory law, action plans, guidelines, training manuals, standard operational protocols, or welfare schemes. Following on the heels of the U.S. TIP Reports, Shakti Vahini once even ranked the anti-­trafficking initiatives of provincial Indian governments.85 The shifting legal scales of anti-­trafficking law within the transnational legal order86 also require mediation between international, regional, and domestic “hard” and “soft” laws implicating, in turn, a range of international stakeholders, including UN agencies and philanthrocapitalists, who have vastly greater resources that enable them to define and measure the problem of trafficking. The international realm sometimes is the primary trigger for the increased criminalization of sex work and trafficking in the global South; this happened in 2005. However, governmentality is also the terrain on which the state is mobilized by contradictory impulses, producing paradoxes. Thus, international public health initiatives around HIV and sex worker organizing helped apply the “brakes” on carceral law reform in 2005; alliances with the IWM helped counter the Verma Committee’s conflation of trafficking with sex work in 2013. It is these modalities and unanticipated effects of governmentality that feminists need to appreciate and account for.

Notes 1. Prabha Kotiswaran, “Governance Feminism in the Postcolony: Reforming India’s Rape Laws,” in Janet Halley, Prabha Kotiswaran, Rachel Rebouché, and Hila Shamir, Governance Feminism: An Introduction (Minneapolis: University of Minnesota Press, 2018), 75–­148. 2. See Prabha Kotiswaran, Dangerous Sex, Invisible Labor: Sex Work and the Law in India (Princeton, N.J.: Princeton University Press, 2011).

400

Prabha Kotiswaran

3. Nandita Gandhi and Nandita Shah, The Issues at Stake: Theory and Practice in the Contemporary Women’s Movement in India (New Delhi: Kali for Women, 1992), 285. 4. Although Janet Halley in chapter 2 of Governance Feminism: An Introduction uses the term “dominance feminism” to encompass both power feminism and cultural feminism, both forms of dominance feminism do not play out in the Indian context. Hence, I focus mostly on “power feminism” and use the term “radical feminism” to connote power feminism. 5. Maya John, “Class Societies and Sexual Violence: Towards a Marxist Understanding of Rape,” Radical Notes, May 8, 2013, https://radicalnotes.org/2013/05/08​ /class-societies-and-sexual-violence-towards-a-marxist-understanding-of-rape/. 6. In their campaign for the eradication of sex work, radical feminists invoke the struggle of anti-­prostitution social reformers who viewed prostitution as “white slavery.” See Janet Halley, Prabha Kotiswaran, Hila Shamir, and Chantal Thomas, “From the International to the Local in Feminist Legal Responses to Rape, Prostitution​ /Sex Work, and Sex Trafficking: Four Studies in Contemporary Governance Feminism,” Harvard Journal of Law and Gender 29, no. 2 (2006): 335–­423, at 338–39n7. 7. Apne Aap, http://apneaap.org/our-approach/cool-men-dont-buy-sex-cam​ paign/ (accessed August 1, 2018). 8. For a description, see Hila Shamir, “A Labor Paradigm for Human Trafficking,” UCLA Law Review 60, no. 1 (2012): 76–­136. 9. Michel Foucault, Security, Territory, Population: Lectures at the Collège de France 1977–­78, trans. Graham Burchell (New York: Palgrave, 2007); Michel Foucault, The Birth of Biopolitics: Lectures at the Collège de France 1978–­79, trans. Graham Burchell (New York: Palgrave, 2008); Alexandra Jayne Innes and Brent J. Steele, “Governmentality in Global Governance,” in The Oxford Handbook of Governance, ed. David Levi-­Faur (Oxford: Oxford University Press, 2012), 716–29. 10. Foucault, Security, Territory, Population, 109. 11. Janet Halley, “Where in the Legal Order Have Feminists Gained Inclusion?,” in Halley, Kotiswaran, Rebouché, and Shamir, Governance Feminism: An Introduction, 4–­5. 12. Partha Chatterjee, The Politics of the Governed: Reflections on Popular Politics in Most of the World (New York: Columbia University Press, 2004). 13. Ibid., 38. 14. Peer Zumbansen, “Transnational Legal Pluralism,” Transnational Legal Theory 1, no. 2 (2010): 141–­89; Kevin Davis, Benedict Kingsbury, and Sally Engle Merry, “Introduction: The Local-­Global Life of Indicators: Law, Power, and Resistance,” in The Quiet Power of Indicators: Measuring Governance, Corruption, and Rule of Law, ed. Kevin Davis, Benedict Kingsbury, and Sally Engle Merry (Cambridge: Cambridge University Press, 2015), 3. 15. See Paul Berman, “The New Legal Pluralism,” Annual Review of Law and Social Science 5 (2009): 225–­42; Paul Berman, Global Legal Pluralism (Cambridge: Cambridge University Press, 2012); Franz Von Benda Beckman, “Who’s Afraid of Legal Pluralism?,” Journal of Legal Pluralism and Unofficial Law 34, no. 47 (2002): 37–­82; Roger Cotterrell, The Sociology of Law (London: Butterworths, 1984), 27–­43; Sally Engle Merry, “Legal Pluralism,” Law & Society Review 22, no. 5 (1988): 869–96;



Governance Feminism’s Others

401

Brian Tamanaha, “Understanding Legal Pluralism: Past to Present, Local to Global,” Sydney Law Review 30, no. 3 (2008): 375-­411. 16. Zumbansen, “Transnational Legal Pluralism.” 17. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, November 15, 2000, 2237 U.N.T.S. 319. 18. Prabha Kotiswaran, “From Sex Panic to Extreme Exploitation: Revisiting the Law and Governance of Trafficking,” in Revisiting the Law and Governance of Trafficking, Forced Labor and Modern Slavery, ed. Prabha Kotiswaran (Cambridge: Cambridge University Press, 2017), 1–­56. 19. Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, December 2, 1949, 96 U.N.T.S. 271. 20. Rohit De, “The Case of the Honest Prostitute: Sex, Work, and Freedom in the Indian Constitution,” in A People’s Constitution: Law and Everyday Life in the Indian Republic (Princeton, N.J.: Princeton University Press, forthcoming), 169–­214. 21. India Const. art. 19(1)(g), https://indiankanoon.org/doc/1218090/. 22. Rohit De, “The Republic of Writs: Litigious Citizens, Constitutional Law, and Everyday Life in India (1947–­1964),” dissertation submitted to Princeton University, 2014, p. 366 (quoting Durgabai Deshmukh, member of Constituent Assembly and Planning Commission). 23. The State of Uttar Pradesh v. Kaushaliya and Others, AIR 1964 SC 416. 24. For an analysis of sex workers’ mobilization in particular, see Prabha ­Kotiswaran, “‘Sword or Shield’: The Role of the Law in the Indian Sex Workers’ Movement,” Interventions: International Journal of Postcolonial Studies 15, no. 4 (2013): 530–­48. 25. Swati Ghosh, “Surveillance in Decolonized Social Space: The Case of Sex Workers in Bengal,” Social Text 23, no. 2(83) (2005): 55–­69. 26. P. M. Nair and Sankar Sen, A Report of Trafficking in Women and Children in India, 2002–­2003 (New Delhi: National Human Rights Commission, 2004). 27. Prajwala v. Union of India (2008), Human Rights Law Network, https://hrln​ .org/prajwala-v-union-of-india/. 28. Priti Patkar and Pravin Patkar, “Consolidating Protection against Ever-­ Escalating Violation: Case of Prerana’s Intervention for Protection of Rights of Victims of Commercial Sexual Exploitation,” paper presented at the 10th UN Congress on the Prevention of Crime and the Treatment of Offenders, Vienna, April 10–­17, 2000; Nair and Sen, A Report of Trafficking in Women and Children in India; Prerana v. State of Maharashtra and Ors. (2003) BomCR (Cri) 481. 29. Shakti Vahini v. Union of India and Ors., Writ Petition (Civil) No. 190 of 2002. 30. See Stuart A. Scheingold, The Politics of Rights: Lawyers, Public Policy, and Political Change, 2nd ed. (Ann Arbor: University of Michigan Press, 2004). 31. Halley et al., “From the International to the Local,” 363. 32. Nicola Mai, “Between Embodied Cosmopolitanism and Sexual Humanitarianism,” in Borders, Mobilities and Migrations: Perspectives from the Mediterranean in the 21st Century, ed. Lisa Anteby-­Yemini, Virginie Baby-­C ollin, and Sylvie Mazzella (Brussels: Peter Lang, 2014), 175–­92.

402

Prabha Kotiswaran

33. See also Chaitanya Lakkimsetti, “HIV Is Our Friend: Prostitution, Biopower, and the State in Postcolonial India,” Signs: Journal of Women and Culture 40, no.1 (2014): 201–­26, at 222. 34. Budhadev Karmaskar v. State of West Bengal (2011), 10 SCR 577. 35. Amrita Madhukalya, “Give Legal Recognition to Sex Workers: Supreme Court Panel,” Daily News and Analysis, November 9, 2010, http://www.dnaindia.com/in​ dia/report-give-legal-recognition-to-sex-workers-supreme-court-2271497. 36. Apne Aap Women Worldwide Trust India and Ors. v. The State of Bihar and Ors., 2015 (1), PLJR 268. 37. Bachpan Bachao Andolan v. Union of India and Ors., AIR 2011, SC 3361. 38. Bachpan Bachao Andolan and Ors. v. Union of India (UOI) and Ors.; and ­Shramjeevi Mahila Samiti v. State and Ors.; and Kalpana Pandit v. State, 2012, IAD (Delhi) 565. 39. Bachpan Bachao Andolan v. Union of India (UOI) and Ors, Writ Petition (Civil) No. 75 of 2012, MANU/SCOR/32485/2013. 40. Ministry of Women and Child Development, “Constitution of an Inter-­ Ministerial Group (IMG) to Consider and Recommend Proposals for Amendment to Immoral Traffic Prevention Act (ITPA), 1956,” Office Memorandum, F. No.3-­ 5/2012-­CP, September 6, 2012, https://shaktivahini.org/about-us/sv-team/. 41. Madhu Mehra, Mary John, and Farah Naqvi to Shri D. K. Sikri, “Criminal Law Amendment Bill, 2010: Response of Women’s Groups,” http://feministlawarchives. pldindia.org/wp-content/uploads/CLA-WOMENS-GROUPS-AND-OTHERSNOTE-ON-SEXUAL-VIOLENCE.pdf. 42. Nivedita Menon, ed., Sexualities (New Delhi: Women Unlimited, 2007), 30; C. Sathyamala and Ritu Priya, “Sex as Work: A Changing Discourse,” Journal of Creative Communications 1, no. 2 (2006): 203–­8; Jamuna Ramakrishna, ed., Women in India: Reflecting on Our History Shaping Our Future: Proceedings of a Consultation on Gender and Development Jointly Organised by CWDS and HIVOS, Bangalore, 24–­26 June 1993 (Netherlands: Humanistic Institute for Co-­operation with Developing Countries, 1994), 22–­23. 43. J. S. Verma, Leila Seth, and Gopal Subramanium, Report of the Committee on Amendments to Criminal Law, January 23, 2013, https://www.scribd.com/doc /121798698/Justice-Verma-Committee-report. 44. The Verma Committee specifically thanks BBA. Ibid., vi. 45. Ibid., 200. 46. Kathleen Barry, The Prostitution of Sexuality: The Global Exploitation of Women (New York: New York University Press, 1995), 11. 47. Yogesh Pawar, “Voluntary Sex Work Is Legal,” Daily News and Analysis, March 24, 2013, http://www.dnaindia.com/mumbai/report-voluntary-sex-work-is-legal​ -1814995. 48. “NGOs to MPs: Retain Justice Verma Recommendations on Trafficking,” FirstPost, February 20, 2013, http://www.firstpost.com/india/ngos-to-mps-retain-justice​ -verma-recommendations-on-trafficking-633521.html. 49. The revised definition of exploitation in the CLA includes “any act of physical exploitation or any form of sexual exploitation.” Criminal Law (Amendment) Act, 2013, No. 13, Acts of Parliament, 2013 (India), 4.



Governance Feminism’s Others

403

50. Bachpan Bachao Andolan, Annual Report April 2012–­March 2013, 1, http:// bba.org.in/assets/annual-report/ar12-13.pdf; Apne Aap Women Worldwide, Annual Report 2012–­2013, 4, on file with author; Ruchira Gupta, “Survivors of Prostitution Changed the Law in India,” Huffington Post, July 5, 2013, https://www.huffingtonpost​ .com/apne-aap/survivors-of-prostitution_b_3223183.html. Neo-­abolitionist NGOs will, however, often highlight the recommendations of the Verma Committee and include links to the Criminal Law (Amendment) Ordinance rather than the CLA. See, e.g., Apne Aap, “External Reports and Documents,” http://apneaap.org/resources​ /external-reports-and-documents/. 51. The Criminal Law (Amendment) Ordinance, 2013, included “forced labour or services” in its definition of exploitation, but this was dropped by the time the CLA was passed. Criminal Law (Amendment) Ordinance, 2013, No. 3, Acts of Parliament, 2013 (India), 5. 52. Janie Chuang, “Giving as Governance? Philanthrocapitalism and Modern-­Day Slavery Abolitionism,” UCLA Law Review 62 (2015): 1516–­556. 53. Walk Free Foundation, The Global Slavery Index 2016 (Nedlands, Western Australia: Walk Free Foundation, 2016). 54. Nick Grono, “Measuring Slavery Encourages Government to Do Better,” Thomson Reuters Foundation, July 16, 2016, http://news.trust.org/item/20160716164413 -tig2w/. A copy of the bill is available at http://wcd.nic.in/acts/trafficking-persons -bill-2016-draft. 55. Soon after India’s ratification of the Palermo Protocol but before Jyoti Pande’s rape and murder, the MWCD had in September 2012 constituted an inter-­ministerial committee to consider new anti-­trafficking legislation. In October 2013, after Jyoti Pande’s murder, the MWCD also convened a meeting of the Central Advisory Committee (CAC) set up pursuant to a 1990 decision of the Supreme Court in Vishal Jeet v. Union of India and Ors., Writ Petition (Criminal) No. 421 of 1989, whose initial mandate was to advise on steps to eradicate child prostitution. The CAC’s civil society members were all neo-­abolitionist NGOs, including Prerana, Prajwala, Shakti Vahini, Gudia, and Sanjog. Possibly as a response to Jyoti Pande’s rape and murder, the MWCD enlarged the CAC’s mandate “[to] cover practically all aspects of trafficking of women and children for purpose of commercial sexual exploitation.” Ministry of Women and Child Development, “Re-­Constitution of Central Advisory Committee (CAC) to Combat Trafficking of Women & Children for Commercial Sexual Exploitation,” Office Memorandum, F. No.3-­1/2010-CP, October 29, 2013, https://shakti​vahini.org/about-us/sv-team/. 56. Prajwala v. Union of India & Ors., Writ Petition (Civil) No. 56 of 2004. 57. National Legal Services Authority, Report of the National Legal Services ­Authority 2015, https://nlrd.org/national-legal-services-authority-submits-recom​men​ dations​-to-supreme-court-for-combating-human-trafficking-in-india/. 58. Ibid., 39. 59. Roop Sen, “The Sad Politicking That Went behind New Anti-­Trafficking Draft Bill,” Daily O, November 2, 2016, https://www.dailyo.in/politics/anti-trafficking​-bill-sex​ -workers-prostitution-prevention-human-trafficking-child-labour/story/1/13794.html. 60. Ministry of Women and Child Development, “Writ Petition (Civil) No. 56/2004 filed by Prajwala vs. UOI & Ors in Supreme Court-­Constitution of a

404

Prabha Kotiswaran

Committee for Preparing a Comprehensive Legislation on Trafficking Regarding,” Office Memorandum, F.No.2–­8/2015-­CP, November 16, 2015, https://www.scribd​ .com/document/290632024/Govt-of-India-Constitutes-Committee-on-Trafficking​ -Legislation#from_embed. 61. Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018, http://www.prsindia.org/uploads/media/Trafficking/Trafficking%20of%20Per​ sons%20(Prevention,%20Protection%20and%20Rehabilitation)%20Bill,%202018 .pdf. 62. This classification means that a survivor’s complaint is not necessary for the police to file a First Information Report (FIR) against the accused. Filling out the FIR is essential for the police to launch an investigation leading to charge sheeting and trial. 63. See Review of Women’s Studies in Economic & Political Weekly 51, no. 44–­45 (2016). See also Padma Govindan, “Rethinking Emancipation: The Rhetorics of Slavery and Politics of Freedom in Anti-­Trafficking Work in India,” Interventions: International Journal of Postcolonial Studies 15, no. 4 (2013): 511–­29; Aziza Ahmed and Meena Seshu, “‘We Have the Right Not to Be ‘Rescued . . .’’: When Anti-­Trafficking Programmes Undermine the Health and Well-­Being of Sex Workers,” Anti-­Trafficking Review 1 (2012): 149–­65; Veronica Magar, “Rescue and Rehabilitation: A Critical Analysis of Sex Workers’ Antitrafficking Response in India,” Signs 37, no. 3 (2012): 619–­4 4. 64. Kotiswaran, “Governance Feminism in the Postcolony,” 76. 65. Prabha Kotiswaran, ed., Sex Work (New Delhi: Women Unlimited, 2011), xxix. 66. The National Network of Sex Workers, “Clarification Sought from the Justice Verma Committee,” press release, February 6, 2013, http://nnswindia.org/upload​ /News/Press-Release/JVC-Section-370IPC-Clarification.pdf. Abhishek Tiwari, counsel to the Verma Committee, responded positively. See National Network of Sex Workers, “Clarification in Respect of Recommended Amendment to Section 370, IPC by the Justice J.S. Verma Committee,” press release, February 9, 2013, http:// nnswindia.org/upload/News/Press-Release/Clarification-from-verma-Commission -on-370.pdf. 67. On the face of it, BBA and Apne Aap come from two different traditions of political organizing. Yet they share a politics of paternalism and common strategies, particularly of raids, rescue, and rehabilitation, which likely laid the foundation for a rich alliance in the aftermath of the Nirbhaya rape case. 68. Verma Committee, “Amendments to Criminal Law,” 12. 69. See chapter 3 of Dangerous Sex, Invisible Labor for a genealogy of materialist feminist writings on sex work and the fluidity with which radical feminists borrow from materialist feminism and vice versa, although not explicitly. Valverde similarly argues that MacKinnon channels Althusserian thought: Mariana Valverde, “The Re-­ Scaling of Feminist Analyses of Law and State Power: From (Domestic) Subjectivity to Transnational Governance Networks,” paper on file with author. 70. See Kotiswaran, Dangerous Sex, Invisible Labor, chapter 2, in particular the discussion on middle-­ground feminism. 71. Ibid., chapters 2 and 6, on the feminist politics of Indian sex workers’ groups.



Governance Feminism’s Others

405

72. Nalini Jameela, Autobiography of a Sex Worker, trans. J. Devika (Chennai, India: Westland Books, 2007), 111. 73. Durbar Mahila Samanwaya Committee, Millennium Milan Mela (Calcutta, India: self-­pub., 2001), 72. 74. See Pratiksha Baxi, “‘Carceral Feminism’ as Judicial Bias: The Discontents around State v. Mahmood Farooqui,” Interdisciplinary Law 3 (October 2016): 6 (where in the effort to deflect criticism that carceral feminists are influencing judicial outcomes, as evidenced by the Farooqui case, she goes on to take pride in the fact that feminists are not against the rights of male defendants to a fair trial). 75. Jameela, Autobiography of a Sex Worker, 113. 76. Durbar Mahila Samanwaya Committee, Millennium Milan Mela, 75. 77. Gayle Rubin, “Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality,” in Pleasure and Danger: Exploring Female Sexuality, ed. Carole Vance (Boston: Routledge and Kegan Paul, 1984), 267–­319, at 281–­82. 78. Jameela, Autobiography of a Sex Worker, 111. 79. These include the Protection of Children from Sexual Offences Act, 2012; the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013; and, most recently, the CLA. 80. Sex workers’ relationship to the law shares synergies with that of materialist feminists. Law has not been Indian materialist feminists’ preferred venue for political struggle; they recognize the inconsistencies of bourgeois legality and its individuated understanding of rape. They view legal demands as intermediate (rather than final) steps toward “larger anti-­systemic struggles.” John, “Class Societies and Sexual Violence,” 10. 81. Swati Ghosh argued that these public health initiatives instituted a watch-­ care model of surveillance whereby sex workers regulated themselves and each other without the anticipated payoff of political agency. See Ghosh, “Surveillance in Decolonised Space,” 61. Ghosh refers here to peer-­educator models of health surveillance and care undertaken in Kolkata’s red-­light areas to prevent HIV. In this method of surveillance by fellow sex workers or “peers,” “to watch was to care, and caring was a mode of watching.” Nelken refers to the “governance of the soul”; David Nelken, “Conclusion: Contesting Global Indicators,” in Davis, Kingsbury, and Merry, The Quiet Power of Indicators, 317–­38, at 319. Rose speaks of “government at a distance” in Sally Engle Merry, “Measuring the World Indicators, Human Rights, and Global Governance,” Current Anthropology 52, suppl. 1 (2011): S83–­95, at S90. 82. Ghosh, “Surveillance in Decolonised Space,” 55–­69, at 66. 83. Partha Chatterjee, Lineages of Political Society: Studies in Postcolonial Democracy (Ranikhet, India: Permanent Black, 2011), 231. 84. Interestingly, despite the collaboration between GFeminists and sex workers’ groups at a crucial juncture before the CLA was passed, both groups missed the omission of forced labor in the definition of exploitation under section 370 of the CLA, thereby denying the law’s protection to large numbers of men and women working in a range of labor sectors under exploitative conditions. This omission has been remedied in the 2018 Trafficking Bill, although the bill retains a carceral approach rather than embrace a labor-­oriented approach. See Prabha Kotiswaran, “Beyond

406

Prabha Kotiswaran

Sexual Humanitarianism: A Postcolonial Approach to Anti-­Trafficking Law,” University of California Irvine Law Review 4, no. 1 (2014): 353–­406. 85. Shakti Vahini, Trafficking in India Report: 2004 (2004), on file with author. 86. Terence C. Halliday and Gregory Shaffer, eds., Transnational Legal Orders (Cambridge: Cambridge University Press, 2015).

C H A P T E R 16

A Cry for Madness Governance Feminism and Neoliberal ­Consonance in Pakistan VANJA HAMZIĆ

There has been for a while a steady flow of critical studies of the women’s movement in Pakistan—­t hat discursive and social formation of and about women that has been memorably described by Farida Shaheed, one of its foremost representatives, as a “movement with feminist demands.”1 These studies query what the movement has become now that it has a long and eventful past, different political and cultural trajectories, individual and organizational harbingers, as well as those “who had failed” to keep up with the exigencies of a given period—­in short, a sense of collective selfhood. In the present chapter, I follow the typical trajectories of such critical studies. I, too, want to pause and look back and tell the story of multiple rises and falls in which feminist thought and endeavors in Pakistan first tackled “the women’s question” and then moved, although not unreservedly, on to “the gender question.” I, too, want to celebrate the fact that “feminism in Pakistan” is no longer thought an oxymoron, in spite of its many foes, of which the fragile (yet) violent state is perhaps the most ambiguous one. I, too, want to consider the negative effects of the Pakistani class system on feminist formations past and present, which has been identified as their single most pervasive hindrance.2 But I also want to reflect on a distinct will to govern in some strands of Pakistani feminism—­a will complex and multifarious in both its catalysts and consequences. In that, however, this will is not dissimilar from other international emanations of Governance Feminism. 407

408

Vanja Hamzić

What makes it differ, at least in part, from other stories collected in this book is the “transitional”3 nature of the society in which it inheres; the nature, of course, that has been fully transformed to fit the markets of global capitalism in a postcolony. To the extent that it engenders a form of power directed toward both the (neoliberal) state and its (almost equally neoliberal) alter ego—­the national and international civil society—­I find certain emanations of Pakistani Governance Feminism curiously, although perhaps unwittingly, close to other forms of power that acquiesce to and support, rather than challenge, the neoliberal society as a fait accompli. This is the danger of a feminism that eschews dissent (or direct action) in favor of governmentality (or, indeed, governance mentality) and invests its social and affective agency toward “chiming with” rather than disrupting neoliberal legalities and political economies—­a feminism whose tune has changed. I propose that what facilitates this change in tune in Pakistan is a type of consonance that neoliberalism demands and that governance feminists are increasingly ready to acquiesce to. In some ways, as we shall see, the story of such feminist acquiescence in Pakistan is a tale of the faith born, then lost, and then born again. That faith is the faith in the state, its laws, and its institutions. It may be a bad faith all right—­one whose ulterior motives are not in preserving and strengthening but, rather, in coping with a system as overbearing as the state. It may have always been just that. But when this faith was born again, I suggest, it was born unto the trouble of a full-­ fledged neoliberal state. No faith could save such feminism from itself. This chapter provides a Pakistani genealogy of sorts of feminist accession to the halls of power and, with it, those halls’ seductive music. It delves into both social and affective circumstances that have befallen the Pakistani women’s movement over time in its relation to governance. By “social” I also mean political, legal, and economic developments. By “affective” I hint, specifically, at an uneasiness, almost a sense of guilt, which has certainly stopped me and, I assume, other researchers in this field from addressing Governance Feminism in the first place. I deal with this troublesome affect first, before proceeding with a historical analysis of the three phases that the women’s movement has arguably gone through: (1) the first thirty years since the Partition of India, in 1947, which saw a multiplicity of feminist and, generally, women’s collectives pursuing different goals;4 (2) the ferocious yet



A Cry for Madness

409

hopeful 1980s, which witnessed feminist collectives fiercely opposing the oppressive state and its “Islamization” agenda; and (3) the time after, when “mass political work of the sort associated with the organized Left was abandoned in favor of project-­based work tied to the demands of the international development and human rights industries.”5 For some, then, this time after is, effectively, the time after feminism.6 It is, at best, the time of an “expertized,” homogenized, and class-­stratified feminism—­and I analyze, in turn, each of these discursively symptomatic traits. I am interested, specifically, in what Janet Halley calls the place of “prophetic madness”—­that place for critical intervention by embodying the vox clamantis in deserto, the voice of one crying out in the wilderness.7 One way to frame this discussion could be to revisit the places deserted by governance feminists and find out who inhabits them now. Hence, toward the conclusion of this chapter, I pay a visit to one such place—­t he inner-­city slums of Lahore in which khwajasara—­a Pakistani gender-­variant community—­retain their political, class, and discursive distinction from both the state and current feminist formations. Without any wish to romanticize such places, I argue that they are both symbolically and materially significant for understanding the pitfalls of feminist governmentality in Pakistan and beyond.

The Guilt Trip Abrahamic religions and their successive ethical systems commonly define guilt as the state of being exposed to judgment for sin.8 In that sense, the uneasiness of writing and, perhaps, reading this chapter is not just an affect but also a legal state of deserving punishment. True, the legality deployed here is primarily of an affective type, but the effects of the justice done are, it seems to me, the same: isolation, devaluation, and failure—­academic or otherwise. Writing on this subject less obliquely than others, Shahnaz Khan, a Canadian professor of Pakistani origin, confesses: “we are silenced by the fear of being accused of betrayal by members of our own communities.”9 The guilt trip she writes about is further complicated by her identitary plurality: “As a ‘third world’ feminist and a postcolonial subject, I am ambivalently positioned within an identity that invites me

410

Vanja Hamzić

to speak both as the victim and as a subject who . . . ‘often feels forced to give an account of itself.’”10 Between an incitement to speak that marks, in Gayatri Spivak’s words, “the new subaltern”—­“woman-­as-­ victim who is the constituted subject of justice under (the now-­ unrestricted) international capitalism”11—­and the perceived need to consent to such justice and legality for the sake of everyday feminist social (and legal) struggle, one is left with an uneasy choice. Either way, for some, it is a choice that results in doubt and depression. It could be that in such collective and individual depression one must look for the origins of a tacit consensus in Pakistani feminist circuits; a consensus to eschew self-­critique or, at least, deem it a deeply “internal affair.” Or, as one critic wrote some twenty years ago, “middle class women feminists in Pakistan have problems talking about themselves, and the stands and actions that they take then are taken ‘objectively’ and usually on behalf of other ‘victims’ of patriarchy.”12 It is remarkable that such self-­defensive strategies have arguably taken center stage precisely at the time of the women’s movement’s overall transformation toward its current, post-­1980s phase, characterized by the rise of feminist expertise, gender “mainstreaming,” and professionalized, “nine-­to-­five” activism. That the present neoliberal turn has remained largely unopposed from within might also have to do with the fact that some prominent leaders of the 1980s feminist struggles have chosen not only to accept this turn but also to take an active part in its full realization. But how could one criticize those who have spent many years in grassroots women’s collectives, fighting against state violence and deep-­seated societal oppressions? After all, it is those women who helped countless others to stand up and self-­organize. They have also helped many an outsider, including myself, to study Pakistani mechanisms of social control. South-­south circuits of research and knowledge are complex phenomena, sometimes precisely because of the sense of comradeship, discursive interdependency, and care for what seem to be shared sets of goals. Researching governmentality from within a body still threatened by so many external factors sometimes feels almost as a Judas’s kiss—­an act of utter and irreversible betrayal. Personal and ideological ties, then, whether intimate or “transnational,” combine to produce the guilt trip as a “natural” need for self-­ restraint, a “free” will to disregard the obvious and perpetuate the



A Cry for Madness

411

agony. This affective value of some strands of feminist governmentality seems to be immensely instructive in understanding the ethos of what begins as a collective social struggle and ends up as an arm of a chiefly individualized struggle for power within a state or state-­like system. In a typical Foucauldian twist, this unsolicited urge is, perhaps, the very fabric of the post-­post-­Westphalian biopoweristic state, as described, for example, by Hardt and Negri 13—­a state whose punitive powers can be deeply relational, intimate, guilt-­based.14

Before the Time of Governance Feminism As is often the case, the borderlines between an avowedly feminist and the larger women’s movement in Pakistan have never been quite clear. The early accounts tended to focus almost exclusively on histories, bordering on panegyrics, of upper-­class Muslim women and their organizations.15 They were rarely, if ever, described as feminist. Then, in the 1980s, a new stream of literature begun to surface, written either by women activists themselves or their ethnographers, such as Khawar Mumtaz and Farida Shaheed’s seminal work, Women of Pakistan: Two Steps Forward, One Step Back?, published in 1987.16 This literature tended to locate the birth of the feminist movement proper squarely within the 1980s women’s activist networks, and even that with some reservation.17 More recent literature is often in agreement with this thesis, emphasizing the watershed events of the 1980s as the time when women’s organizing reached the sufficient level of popular appeal and ideological determinacy to be called “the movement” and “feminist,” respectively. Most of the accounts, then, identify three phases that the movement has gone through: the time before, when no clear sense of the collective self seemed to permeate Pakistani feminist thought; the 1980s as, indeed, the time of feminist organizing; and the time after, in which the movement still finds itself. These, I propose, are no ordinary semantics. Not only do they reveal the strong whiff of nostalgia for a time gone by, they also signal that something elementary might have been lost in the aftermath of post-­1980s transitions.18 This sense of loss, as we shall see, is primarily related to the marginalization and gradual disappearance of non-­neoliberal forms of feminism in Pakistan. And, because that loss is congruent with the state’s overall economic and political transformations, it is instructive to turn to their comparative analysis.

412

Vanja Hamzić

Pakistan emerged in the late 1940s as a state of uncertain political and economic orientation. On the ideological plane, its founder, Muhammad Ali Jinnah, sought to distinguish between Islam and Muslims inasmuch as the former was for him a source of one’s personal ethics and the latter “a more general ethno-­cultural identity.”19 Muslims were essential for his state project, but their religion, it seems, not, to the extent that it should provide for a theocratic, instead of democratic, government. He was also considered an early champion of gender equality and was “mostly accompanied by his younger sister, Fatima Jinnah, as his confidant.”20 In an oft-­cited speech in 1944, Jinnah implored Muslim men: “take your women along with you as comrades in every sphere of life.”21 His death in 1948 marked the beginning of a prolonged crisis of the state’s political identity, with all the successive governments, whether civilian or military, struggling to strike the right balance between “the religious” and “the secular” in their take on state governance. The early economic affairs of Pakistan were also fraught with ambiguities. Some claim that Jinnah “wanted not only a secular but a somewhat socialist state.” 22 Neither turned out to be possible. The state initially had no industry of its own, and its economic growth depended, almost exclusively, on import substitution.23 Feudal and colonial social formations, exacerbated by large-­scale population displacements caused by the carnage of the 1947 Partition, gave rise to an elite class of politicians, landowners, and military dignitaries who made the state economy increasingly dependent on “tied” foreign aid, particularly that from the United States. The very same elite class continues to rule the state to this day. This is, however, not to say that the state could not have taken a different turn. A pluralist socialist movement, counting in its ranks members of many professions and cutting rather successfully across the social and political class formations of the time, developed early on, but remained largely underground due to continuous state repression.24 The emergence of Zulfiqar Ali Bhutto’s populist Pakistan People’s Party (PPP) on the political scene in the 1970s, with its “Islamic socialist” platform, marked the only time in Pakistan’s history when its overall capitalist course could have been altered. Bhutto’s platform, however, soon proved to be a failure, and his forceful removal from power in the 1977 military coup was “tacitly if not overtly supported by the United



A Cry for Madness

413

States.”25 The ensuing eleven years of the dictatorial regime of General Zia-­ul-­Haq saw the implementation of an opportunistic state-­led program of “Islamization” of Pakistan’s laws and society. But, economically, Zia’s regime ensured that the state be swiftly turned back on its old capitalist course. The ensuing governments made little effort to change this course; if anything, they helped the establishment of new markets of globalized capitalism, including those specifically geared toward civil society. These are, of course, rather well-­k nown developments, but they are rarely linked to the three phases of the Pakistani women’s movement and its specific feminist strands. Instead, most influential accounts of the movement usually begin by narrating the story of early elite women’s organizing, epitomized in the work of the All Pakistan Women’s Association, which largely owed its creation to Begum Ra’ana Liaquat Ali Khan, the wife of the first prime minister of Pakistan. The other early women’s organizations are usually mentioned in passing, or not at all. It is, however, of no small importance that in the first thirty years of Pakistan’s existence, the “avowedly political”26 middle-­and lower-­ middle-­class women’s organizations emerged, too, including a Marxist collective known as the Democratic Women’s Organization (DWO). This collective “raised issues of equal wages for equal work, of transport services and basic facilities for workers, and issues of non-­ militarization and peace.”27 DWO and other similar groups are, however, rarely described as feminist. Their links to other strands of the organized Left of the time are seemingly not considered worthy of feminist analysis either. Ferida Shaheed, for example, offers a highly reductive reading of the first-­phase Marxist feminist investments in class difference, arguing that DWO “focused on class rights and articulated demands in terms of better life conditions for women of the oppressed classes without, however, addressing gendered differences within that class.”28 Just how it was possible for a radical women’s collective to eschew “the gender question”—­whatever it may have meant there and then—­remains unexplained. It suffices, it seems, that a stark dichotomy is asserted between Marxist and feminist voices from an early time. In a similar vein, the mainstream accounts of the second, arguably most important, phase in the movement’s history tend to emphasize the role of the Women’s Action Forum (WAF) as a loose umbrella

414

Vanja Hamzić

collective for women’s rights. It is undoubtedly true that WAF remained, throughout the 1980s, the single most important repository of feminist action, dialogue, and cooperation. Yet, in its early years, it “raised a voice not only for women’s rights but also against military dictatorship and for the demand for the restoration of democracy.”29 Operating as a nonhierarchical platform, WAF made it its policy not to accept any external funding or open a permanent office. Instead, it engaged in direct action against the oppressive state, which saw its members “arrested and threatened” as well as “baton-­charged and tear-­ gassed by the police.”30 Despite or perhaps precisely because of such actions, WAF declared itself “nonpolitical” in its official charter, which later accounts tend to describe as a model NGO move. However, in the words of two of its cofounders, this simply meant that “it was not aligned with any political group or party and was not involved in parliamentary politics.”31 In 1991, that is, three years after the fall of the Zia regime, WAF amended its nonpolitical designation to “politically non-­aligned.”32 By then, however, some of its members were already heavily engaged in “the art of lobbying”33 the successive civilian governments, and, as a consequence, “being political” began to mean something rather different. What the depictions of WAF as a nonpolitical rights-­based network in the 1980s fail to acknowledge is the existence of many contemporaneous left-­leaning women’s collectives operating within and without it, such as the Lahore-­based Tehrik-­e-­K hawateen, which tried “pulling WAF further to the left,”34 and the Applied Social Research (ASR) Resource Center, described as “one of the vocal socialist feminist forums.”35 That these collectives were critical of WAF’s strategic nonpolitical public profile and its increasingly exclusive focus on women’s rights can now be implied only ex post facto;36 what is certain, however, is that those voices are all but excluded from the mainstream literature, often written by other, more liberal-­minded members of WAF. The radical potential and, indeed, actions of WAF as well as the inherent plurality of women’s and feminist organizing in the 1980s largely fail to emerge in these accounts. Instead, the reader is given the impression of the movement’s continuous focus on what truly became, in the 1990s, the prerogative of Pakistani Governance Feminism.



A Cry for Madness

415

WAF declared General Zia’s dictatorial sway over Pakistan’s society, evidenced in particular in a series of “Islamic” ordinances, laws, and legal institutions, as its key target. It abhorred Zia’s Machiavellian misuse of Islam to justify the government’s repressive policies, which disproportionately affected women of all classes and backgrounds. In a seminal work published in 1990, Asma Jahangir and Hina Jilani, two lawyer sisters at the forefront of opposition to Zia’s regime, averred that he “had driven the nation to such paranoia that Pakistan’s Muslims . . . felt Islam was in danger. Who was threatening Islam? No one knew.”37 However, WAF’s preoccupation with the theopolitical nature of the military regime came at a price of the overall lack of substantial analysis of Zia’s economic policies, which were flagrantly capitalist with few, if any, Islamic ethical considerations attached to them. The popular support for Zia’s economic program, especially among the lower and lower middle classes,38 developed largely due to the success of the regime’s propaganda machine, which falsely associated that program with the society’s relative prosperity at the time. In reality, however, that prosperity was owed primarily to “several years of good harvests in Pakistan and significant remittances from foreign workers living in the Middle East.”39 Lone feminist voices against such elaborate schemes rarely managed to garner the women’s movement’s more than merely declarative support. WAF’s failure to orchestrate a collective focus on the economy, or even on the regime’s political economy, coincided, unfortunately, with Pakistan’s transformation toward a full-­fledged neoliberal state. What is more, by the end of the 1980s, the feminist faith in the state largely returned, so much so that even the former Zia regime’s abhorred “Islamization” program came to be seen primarily as “an attack on modern-­ state formation,” thereby reinforcing “the dichotomous tradition-­versus-­modernity construct.” 40 By repositioning themselves as (gender) experts ready to help “fix the state” after the long reign of an anti-­modern dictator, the emergent feminist formations of professional middle-­and upper-­middle-­class women acquiesced all too readily to the roles and responsibilities that NGOs and their leaders were invited to assume in a (new) capitalist civil society. Such developments marked the rise of Pakistani Governance Feminism.

416

Vanja Hamzić

The Time of Governance Feminism Writing in 1995, Nighat Said Khan, a founding member of both WAF and ASR, lamented over the movement’s increasingly evident loss of its “political edge”: “Women’s groups are now institutions; feminists are members of [the] establishment.” 41 She warned, in particular, of the affective and agentive dangers of the rising “professional” feminism, which “not only leads to a further fragmentation of the self and to a false consciousness, but, by reinforcing the separation of the public and the private, it negates what the women’s movement is trying to struggle for.” 42 The movement’s by-then ubiquitous focus on human rights was, for Khan, a missed opportunity “for a more profound transformation,” 43 since, in her opinion, “as far as feminism is concerned equal rights within the existing system is not an end in itself.” 44 She complained that her and other critical voices were becoming more and more marginalized: “Challenge and reflection are often dismissed as divisive or a ‘waste of time,’ and in any case, too painful.” 45 Khan wrote at the time of Benazir Bhutto’s second nonconsecutive term in office as Pakistan’s only female prime minister. Although Bhutto came from and led the PPP, which at the time was (and still is) often described as “a liberal, secular party,” 46 she was also seen as prone to nepotism and “feudal style politics.” 47 Prominent women’s rights NGOs and gender experts extended support to her and her government, albeit more cautiously than during her first term in office.48 A major focus of Bhutto’s and women’s NGOs’ concerns seemed to be legal reform. However, she did not dare appeal or change the draconian Zia’s “Islamic” ordinances, which had implications for her ability to engage feminists in her government: “The reservations of feminists such as Asma Jahangir highlighted the underlying issues when she refused to be the first female judge on the grounds that she could not defend laws she did not believe in.” 49 In the same year, Bhutto led the Pakistani delegation to the fourth United Nations Conference on Women in Beijing: She involved a large number of women’s organizations in the conference, as well as in helping to prepare official report. With this encouragement, many women’s groups later participated in Beijing, and in five sessions in New York, to evaluate the outcomes of the conference, along with five women ministers representing the government.50



A Cry for Madness

417

Despite its limited successes, international activism came to be an important staple of Pakistani feminism, involving a dazzling number of international and regional bodies and fora, particularly those of the United Nations.51 Some Pakistani feminists later claimed that “they were keenly aware of the fact that rights issues can also be made to serve global interests, and the UN adoption/appropriation of violence against women was neither as innocent nor as transparent as it was purported to be.”52 Nonetheless, the movement’s overall engagements with international fora remain largely unscrutinized. What is certain, however, is that some formations of Pakistani Governance Feminism benefited enormously from such engagements, in particular in relation to numerous expert roles those engagements enabled them to assume. Such roles, in turn, reinforced the feminist faith, or at least its outward apparition, in both the state and the international human rights system, which assisted the process of neoliberal homogenization and further class-­based stratification of Pakistani feminist circuits. I turn now to each of these phenomena.

Feminist Expertise and Its Discontents Expertise as a mode of bodily and discursive discipline has been, of course, an important concern of race and gender studies.53 Societal incitement to expertise, for example, has been a subject of feminist critique, of which Shahnaz Khan gave a memorable description: “My body bears the markers of race and gender; as a result, I am considered the ‘expert’ in this area.”54 In the advent of what Gayatri Spivak characterized as “impatient ‘gender training’ from above,”55 an expertise in the victimhood of the Muslim woman has become particularly desirable, resulting in an ever increasing number of professional women whom Saba Mahmood, in a related context, called “de facto ambassadors of an international community of oppressed Muslim womanhood.”56 Such expertise has divided feminists, with those harboring a will to govern clearly in favor of this new market of opportunities. In Pakistan, too, feminist expertise came on the wings of Governance Feminism’s deep investment in neoliberal, project-­based, nine-­ to-­five-­style forms of civil society work. For the Pakistani scholar and activist Rubina Saigol, the epitome of such feminist “expertization” is so-­called gender training, which “became a substitute for political action by real people in a real and unjust world.”57 Such training

418

Vanja Hamzić

created a market of technocrats, experts, and consultants on gender who became a part of the global political economy of gender. Often without any experience on the ground, or involvement in serious political struggles, experts and technocratic consultants produced superficial technical reports on the issues of gender equality. The Harvard Analytical Framework, which in reality is hardly analytical or a comprehensive framework, became the dominant form of knowledge used by these experts in their work. . . . What suffered most from the report-­producing culture in the area of gender and development was activism and political critique for change. . . . Over a period of time, the women’s movement, as a passionate, spontaneous, and political movement, virtually died out. It was replaced by the straitjacket of gender and gender training.58

Apolitical (“neutral”) yet invested in work with the government, professionally “autonomous” yet donor-­driven, avowedly “integrationalist” yet usually “funded for a specific focus on one aspect of the human being and society,”59 the new expert feminism quickly turned out to be replete with ambiguities. The same NGO that has assisted the government in developing a range of gender policies would write a shadow report later on criticizing the “weak implementation of otherwise adequate policies.” 60 In a highly critical study of women’s NGOs caught in the wave of feminist expertise, Tahmina Rashid, an Australian scholar of Pakistani origin, concludes that “nearly all” of those organizations “could not grasp the real issues of those they claim to represent.” 61 She accuses them of being hierarchical, disjointed, self-­centered, and business-­like, while the anonymous workers of those NGOs with whom she had conducted extensive interviews speak of unfair dismissals, class bias, and double standards, to the extent that one frustrated interlocutor calls for “a Union of NGO workers.” 62 The proliferation of feminist expertise in Pakistan signaled the rise of feminism-­as-­industry that chimed with the overall entrepreneurialization of nongovernmental social and political work. The proponents of this industrial turn explicitly identified governance as one of their “key thematic areas,” within which they were, in the interpretation of one such feminist NGO, to work on the elimination of “gender biases . . . by engaging with policy-­makers, duty bearers, and elected



A Cry for Madness

419

women representatives to ensure responsiveness [and] by building capacity of women and communities to claim their rights.” 63 Although there can be little doubt that such circuits of feminist action retained some autonomy from both the state and their international donors, their ever-­increasing entanglement in the neoliberal production of expertise, and the concomitant demand and production of “tangible results” 64 of governance projects, feminist or otherwise, sharply reoriented the movement’s structures, foci, and goals.

From Feminisms to Feminism Historical accounts of the women’s movement in general, and WAF in particular, in its 1980s phase invariably mention the abundance of internal diversity. Rubina Saigol, for example, claims that “the shades of feminism within the movement ranged from liberal to socialist, Marxist, postmodern, and religious.” 65 In the decades that followed, that diversity came to be less and less visible. In a truly capitalist fashion, the movement’s apparent “harmonization” into a single public face of feminism came both as an external demand and an internal response—­the former spurred by the rise of new neoliberal civil society markets and the latter evidenced in the advent of Governance Feminism. This process appears to have resulted in a type of consonance, in which the state, the civil society, and the so-­called international community are in sync with some form of neoliberal tune, with the language of human rights as a chief means of mediation and, at times, an uneasy harmony among them. The paradox of such consonance is not only in the difference in the bargaining positions that state, nonstate, and international actors occupy in the political economy of Pakistan (which, in other circumstances, would not “rhyme” with one another), but also in the means used to “de-­diversify” the country’s feminist formations. I argue that the chief modality of such “de-­diversification” came to be consonance-­ through-­compartmentalization, in which “each area of human activity became a separate, watertight compartment,” 66 governed by a distinct form of feminist expertise that gradually marginalized other (dissenting, dissonant) feminist engagements. One such compartment, which exemplifies the complexity of this process, is that of religion. Pakistan’s turn to neoliberal feminism as the new feminist dominant is concomitant with, and related to, a dramatic increase in the

420

Vanja Hamzić

international Orientalist demand for, and the resulting proliferation of, in Saba Mahmood’s words, “‘moderate’ Islamic scholars who promote a liberal interpretation of Islam . . .—­[a] testimony to the hegemony that liberalism commands as a political ideal for many contemporary Muslims.” 67 For those Pakistani feminist NGOs and individuals that have stayed in the fray throughout the post-­1980s developments and transformations, the engagement with religion became something of a coming-­of-­age test for their civil society “status” and both governmental and international support. Those who have passed this test secured for themselves an ambiguous role of “interpreters” and “negotiators” between the various reductive political engagements with Islam, employed by the Pakistani governments, political parties, and the “international community” (including the “donor community”), respectively. Theirs came to be a “human rights approach” to Islam and Muslim women, which found its way to both (hard-­won) state laws and policies as well as well-­funded long-­term projects. Others, including a stream of socialist feminist collectives (for example, the ASR Resource Center) as well as conservative Muslim women’s organizations, meanwhile found themselves on the margins of civil and political engagements. For socialist feminists, the new industrialized terrain of social action required disassociation, rather than direct engagement, with by now “typical” NGO modes of operation—­a move that placed them firmly on the outside of civil society dynamics and made many a committed activist switch to less direct forms of political action, such as journalism or academia. The “religious turn” appeared to them particularly unpalatable, as they maintained the commitment to “women’s liberation” through avowedly “secular” political action.68 For conservative Muslim women’s organizations, the full-­fledged neoliberal Pakistani state represented everything that is wrong about the “West-­struck” (maghribzada) government and civil society alike. Paradoxically, perhaps, the more grassroots elements within these women’s formations, such as the female students of Jamia Hafsa madrassa, adjacent to the Lal Masjid complex in Islamabad, even resorted to violent forms of direct action—­the move that earned them a range of sexist epithets from the “secular” middle-­and upper-­class echelons of the Pakistani society, such as “the veiled brigade” or “chicks with sticks,” as well as little, if any, feminist approval.69



A Cry for Madness

421

The mainstream feminist literature on these matters is paradigmatic in its treatment of the marginalized Other, on both ends of the political spectrum. Apart from the brief mention of early socialist collectives, routinely portrayed as disinterested in “gender inequality,”70 the distinctly socialist margins of the current Pakistani feminist formations are left out altogether in recent feminist historical accounts. In a similar vein, conservative Muslim women’s formations, such as women activists of Jama’at-­e-­Islami,71 are described as “disdainful of the idea of feminism in all its manifestations”72 and any dialogue with them dismissed “as a waste of time.”73 Amina Jamal, a scholar researching Jama’at-­e-­Islami women’s activism, maintains that this dominant positionality amounts to a crisis in feminist scholarship, which manifests itself in an inability to acknowledge Jama’at women’s (political and social) autonomy due to a strongly felt disagreement with their ideological commitments.74 Instead, a “human rights approach” to Islam is commonly employed as the only viable alternative to the widespread interpretations of Muslim legal and social traditions as pervasively patriarchal.75 With the government, the “international community,” and Governance Feminism all “doing religion” as well as “doing women’s rights”— the labor deserving a Butleresque76 attention to performativity—­ there seems to have arisen a certain amount of concordance among them not so much in how those things are “done” but in how they are discussed and communicated (“disseminated”). Some feminist writing has embraced this common genre, too. The heavily legalistic language of the early literature is all but displaced by broad historical and culturally pluralist accounts of “women asserting rights in Muslim contexts.”77 These are often well-­researched studies, which, unlike the victim literature of the past (which centered on the image and experience of the female victim of patriarchy), describe Muslim women’s political and social affairs as complex and historically conditioned. And yet the absolute, transhistorical primacy of rights-­speak never falters in such accounts. It feels as if this language is the only bridge across the times, spaces, cultures, and classes of which the imagined Muslim womanhood is composed—­as if rights are its only true ideological anchor. And this is worrisome. The displacement of political engagement as a mode of being-­in-­the-­ world (exemplified in the second-­wave feminist slogan “the personal

422

Vanja Hamzić

is political”) with a seemingly universal and politically ambiguous subjectivity of the rights-­holder characterizes, of course, the wider move toward neoliberal tunes in feminist circuits of knowledge and action. That Pakistani expert literature largely followed suit is but another testament of a social and political transition that occurred domestically, along the same lines.

Governmentality and Class Distinction While cross-­class feminist action has always been a challenge in Pakistan, prompting one critic to conclude that the movement’s emergence and “development can be related clearly to the class (one could even call it bias) and social location (often urban) of its adherents, and the needs that these particular women saw as overriding,”78 the advent of neoliberal consonance has acerbated interclass feminist relations to a seemingly unprecedented extent. In a deeply classed society, Governance Feminism has taken on a distinctive socio-­linguistic organizational structure of the ruling classes, while retaining its claim to its former grassroots credentials. Tahmina Rashid’s is perhaps the most damning of recent scholarly accounts on this problematic. “In my discussions with many rural and urban women,” she writes, “the relationship between women activists and those they claim to represent seemed non-­existent, as the existing class stratification and barriers denied them shared sisterhood.”79 Rashid provides a detailed elaboration of how class difference is maintained both within the organizational strata of women’s NGOs and in their governance projects—­including through inequitable practices in employee recruitment, retention, and progression. As a consequence, she claims, “the sense of ‘otherness’” is profound between different classes of women activists as well as those who participate in their public activities.80 Thus, Rashid bitterly concludes, The upper class and upper middle class orientation of the women’s organizations effectively validated the autocratic culture of Pakistani society, as the overwhelmingly elitist and narrow foundation, [while these organizations’] narrow legal, urban and gender-­centric agenda ignored the lived experiences of the majority of women, those of the lower and lower middle classes.81



A Cry for Madness

423

The response of the women’s NGOs concerned has largely been that, “despite differences in class position and location, women in general confront the same issues,”82 and that their outreach programs among classes other than their own provide for a sense of autonomy, with one NGO adamant that they “never decid[e] for the group what their agenda should be.”83 Nevertheless, such programs rarely, if ever, question the encountered and internally (organizationally) perpetuated class difference. What is more, the upper-­class echelons of feminist action, whether disguised as “grassroots” NGO projects or as ad hoc “cross-­cutting initiatives” of elite individual women, produce increasingly disconcerting results. A notable example is the introduction, in 2010, of an amendment to section 509 of the Pakistani Penal Code, which made “sexual harassment in any location a crime in Pakistan,” along with the passing of the Protection against Harassment of Women at Workplace Act 2010, which stipulates “the development of self-­regulatory mechanisms to deal with instances of sexual harassment through adopting the Code of Conduct mandatory for all organizations, be they public or private.”84 Although celebrated, in a recent article, as “the culmination of ten years of activism by AASHA (Alliance Against Sexual Harassment)— an alliance of like-­minded individuals affiliated with different organizations,”85 the criminalization of sexual harassment in Pakistan is, effectively, the result of one elite woman’s “utilization” of “the lessons she had learnt while fighting the sexual harassment [issue] in UNDP [United Nations Development Programme].”86 The lessons, it seems, mainly related to somewhat unorthodox lobbying techniques—­ prompting AASHA activists to not only “work closely” with the government and “private corporatized bodies”87 but also to write memos for notable state officials, telling them what they needed to say88 at key legislative meetings. Bizarrely, this direct take on governance—­possible only through internal engagements with upper-­class circuits of power—­ has since been described as “a marker of [feminist] autonomy.”89 As with other social formations in Pakistan, class structures are particularly revealing in Governance Feminism’s language politics. Feminist literature, whether popular or specialist, “is mainly published in English and Urdu, [although the] large majority of women are unable to read either of those languages.”90 It is also very difficult to obtain in rural areas and largely unaffordable to all but upper-­and middle-­class

424

Vanja Hamzić

readers. With some rare exceptions, the overall discourse of Governance Feminism is geared toward the upper echelons of Pakistani society and their distinct real or imagined concerns. In these debates, lower-­class voices appear to be “heard” almost exclusively through the cultural and linguistic filters of mediation (“contextualization”) and translation, which, yet again, primarily take the form of “asserting their rights.” At best, then, such voices are forced “to rely on representational labor [of a middle-­or upper-­class feminist Other] to inscribe their existence on the minds of those who are expected to believe in their reality.”91 To those who “listen” on the other side of the class divide, the voices and concerns of “represented classes,” or even their very existence in a world not so far away, remain by and large a distant and imponderable alterity.

The Desertion and the Desert Despite the sustained efforts of state and nonstate actors to make it the single most audible “melody”—­social, economic, political, or otherwise—­neoliberal consonance in Pakistan is not heard or acquiesced to everywhere with the same intensity. Class, communal, linguistic, religious, and even gender stratifications continue to fracture the country in ways that simultaneously enable and disrupt the neoliberal “harmonization” project. While Governance Feminism asserted itself as a chief mediator of some such rhymes, it also made itself unappealing to many a dissonant constituency. The community of khwajasara, with whom I have conducted much of my fieldwork in Lahore, Punjab, over the past several years, is a case in point here.92 Khwajasara or hijre (singular hijra), as they are better known in the larger South Asian context, are a male-­or intersex-­born gender-­variant subjectivity, nowadays largely of lower-­class background. Over a long period of time, khwajasara have developed a distinct familial system, which relies on a range of affective, entrepreneurial, religious, and gender/sexual ties, including the ma’an/dhi (“mother”/“daughter”) and guru/chela (“master”/“apprentice”) relationships that they forge among themselves as well as the relations, which often include paid sex work, with their giriya (“boyfriend,” “customer,” or “male partner”). Khwajasara usually live together, in households known as deray (sing. dera), where they perform activities related to many aspects of their familial



A Cry for Madness

425

and economic life, including care for the neighborhood’s children, educational and religious classes, communal financial transactions (a dera is often used as an alternative to a bank), and sex work. The sustainability of khwajasara households is achieved through a complex web of informal relations and what some khwajasara describe as the unspoken rules of izzat (“respect”) within lower-­class neighborhoods. There is also, however, an increasingly multifarious relationship between the khwajasara community leaders and the Pakistani state (particularly its higher judicial circuits), which started out of the need to counter police brutality and achieve some autonomous political representation but has since resulted in some rather surprising developments, including the Human Rights Constitutional Petition 63/2009 (or, simply, Case 63/09). In Case 63/09, the chief justice of the Supreme Court of Pakistan gave, suo motu, the khwajasara community a series of fundamental constitutional guarantees. Those guarantees include a “third gender/sex” status, which was to appear on their identity cards and all other official documents; the right to vote as khwajasara and to contest elections; a range of previously denied inheritance and property rights; protection against abuse by the police and other organs of the Pakistani state; and a promise of substantial social and health care as well as education and employment provisions, which were supposed to be facilitated by various provincial governmental agencies. Although many of these guarantees still await full implementation, Case 63/09 marked the beginning of a new phase in the khwajasara political and social life and self-­organizing. This phase is marked not by a sudden faith in the state and its judicial system but by khwajasara’s cautious and creative uses of the state’s legal pledges, such as those expressed in Case 63/09, to ensure broader grassroots cooperation and solidarity. Rather than waiting for the state to act on its own promises, khwajasara resolved to utilize such promises in their own ways, as their new bargaining chips in everyday relations with their neighbors, medical services, schools, the police, and many others.93 At this point, it is useful to remember that the rise of Governance Feminism in Pakistan is coterminous with, and very much related to, the rise of the “gender question,” which superseded the women’s NGOs’ previous focus on “the women’s question.” Some resistance to this discursive transition came particularly from socialist feminists, who saw in this move an undue concession to “the World Bank, the United

426

Vanja Hamzić

Nations, bi-­lateral aid agencies, and . . . governments, all of [which] link this concept to [capitalist] development assistance.”94 Nighat Said Khan, for example, argued apropos that “the word ‘gender’ [was] encouraged as supposedly neutral, apolitical, and not as threatening or divisive as ‘woman.’”95 Governance feminists disregarded such warnings. Instead, “gender” indeed became the new organizing—­ almost “all-­purpose”—­concept, vigorously “mainstreamed” at all levels, mostly as a substitute for “woman” but also as a means to include “others,” that is, men. It is remarkable, then, that the feminist “gender question,” and all the feminist work that it had triggered, overwhelmingly excluded the question of gender variance and the communities, such as khwajasara, who embody it in their daily life and social and political struggle.96 Not only does this signal a worrisome inability of Governance Feminism to respond to, or perhaps accept, the lived experiences of those who do not fit neatly into the binary categories of “men” and “women”; this is a testimony, too, I submit, to an auto-­conservative impulse that has largely prevented Pakistani neoliberal feminists from substantially engaging with workers and working and lower classes in general, and sex workers in particular, regardless of their actual or perceived gender. It just so happens that khwajasara are (still) everything that Governance Feminism in Pakistan is not—­gender-­pluralist, beyond and outside the prevalent normative concepts of what constitutes a (or the) family, reliant on “street solidarity” more than on their relations with the government, and economically and socially distant from and dissonant with the major neoliberal markets of social and discursive belonging and exchange. This gives the khwajasara collectives, as political and social units, an ability to “bounce back from . . . periodic crises” and live their lives “in meaningful and creative ways.”97 Such vigor and elasticity—­once famed by the 1980s feminist formations in the country—­are all but gone in today’s governance feminist circles. Instead, the logics and tunes of a state-­like structure, efficiency, language, aspirations, and order have long taken center stage. What the prevailing feminist project in Pakistan has lost, or perhaps has deserted, is the prophetic madness of the voice crying out in the wilderness, or, to stay true to the Latin original (vox clamantis in



A Cry for Madness

427

deserto), the voice crying out in the desert.98 The madness of the biblical prophet is built upon and requires the desert—­a peripheral place that allows for a parallactic view, a view from a noncentral, nonordinary position. With Governance Feminism taking neoliberal logics of governmentality full on, that critical and creative madness is left for the others to experiment with. The desert, once inhabited by many shades of feminism, is only a distant memory. Melancholic as that memory can be, it fails to bring back the dreams of the future past.99 Instead, a willful consonance with neoliberal tunes in Pakistan equals an almost instant and seemingly irreversible loss of hope in futures other than those congruent with the capitalist order. It is the logic of this order—­its very music—­that makes feminist madness a history, or at least a marginal phenomenon—­the logic bent on governmentality. I have argued elsewhere100 that the political, economic, and social distinction that the khwajasara collectives maintain between themselves and the neoliberal state and state-­like civil society entities is a form of resistance that requires both discursive and spatial distancing. Such distancing and living in the desert, marginal to the statist and capitalist “real,”101 is no longer within the purview of the Pakistani feminist dominant. This is why, to some, the desertion of the desert in those crucial post-­1980s transitions felt like the desertion of feminism, as such. Could the movement’s creative alterity be restored from the margins, including the margins of the prevalent gender order?

Notes 1. Recent contributions include Sadaf Ahmad, ed., Pakistani Women: Multiple Locations and Competing Narratives (Karachi: Oxford University Press, 2010); Rubina Saigol, The Pakistan Project: A Feminist Perspective on Nation and Identity (New Delhi: Women Unlimited, 2013); Anita M. Weiss, Interpreting Islam, Modernity, and Women’s Rights in Pakistan (New York: Palgrave Macmillan, 2014). Typically, these three books tell three very different stories of feminism and the women’s movement in Pakistan. To the debate on the difference between the women’s movement and feminism(s) in Pakistan, Farida Shaheed provides the following contribution: “In the Pakistani context it seems more appropriate to speak of a women’s movement that has some feminist underpinnings or . . . a women’s movement with feminist demands”; Farida Shaheed, “The Women’s Movement in Pakistan: Challenges and Achievements,” in Women’s Movements in the Global Era, ed. Amrita Basu (Boulder, Colo.: Westview Press, 2010), 95. In this chapter, I call these collective formations, feminist or otherwise, “the movement.”

428

Vanja Hamzić

2. This is beside, of course, patriarchy itself, which most accounts consider a key element of the Pakistani class system. For an illuminating contribution, see Saadia Toor, The State of Islam: Culture and Cold War Politics in Pakistan (London: Pluto Press, 2011). 3. That a society is thought or obliged to “transition” is, in my view, both a consequence and a specific condition of a neoliberal turn in its political economy. In the Pakistani context, this “transitionality” is further exacerbated by the society’s postcolonial condition. Neoliberalism in this chapter is employed to explain not only the capital’s latest phase of “socialization”—­which gave rise to the “market-­state”—­but also an uncanny ability of the ideology of free markets to gradually colonize the nonstate sites of political action toward an ever greater, if never easy, “harmony” between the markets, the state, and the “third sector.” For the description of the “market-­state” as “one with the primary agenda of facilitating global capital accumulation unburdened from any . . . regulations aimed at assuring welfare of citizens,” see Tayyab Mahmud, “Is It Greek or Déjà Vu All over Again? Neoliberalism and Winners and Losers of International Debt Crises,” Loyola University Chicago Law Journal 42 (2011): 663. On the postcolonial condition (and its impact on gender and sexual politics), see, e.g., Saskia Eleonora Wieringa, “Postcolonial Amnesia: Sexual Moral Panics, Memory, and Imperial Power,” in Moral Panics, Sex Panics: Fear and the Fight over Sexual Rights, ed. Gilbert H. Herdt (New York: New York University Press, 2009), 206–­7. 4. This plurality of expressions and strategies that seem to have shared a relatively insignificant “common ground” might be the reason why certain Pakistani feminist authors sought to portray this phase as a long period of gestation of the women’s movement, which wasn’t truly to be born before the early 1980s. See, e.g., Shaheed, “The Women’s Movement in Pakistan,” 94–­100; Khawar Mumtaz and Farida Shaheed, Women of Pakistan: Two Steps Forward, One Step Back? (London: Zed Books, 1987), 71–­76, 123–­130. 5. Saadia Toor, “Imperialist Feminism Redux,” Dialectical Anthropology 36 (2012): 155. 6. See, e.g., Nighat Said Khan, “The Women’s Movement Revisited: Areas of Concern for the Future,” in Unveiling the Issues: Pakistani Women’s Perspectives on Social, Political and Ideological Issues, ed. Nighat Said Khan and Afiya Shehrbano Zia (Lahore: ASR Publications, 1995), 187–­94. 7. Janet Halley, “Dancing across the Minefield: Feminists Reflect on Generating, Owning and Critiquing Power,” in Janet Halley, Prabha Kotiswaran, Rachel Rebouché, and Hila Shamir, Governance Feminism: An Introduction (Minneapolis: Minnesota University Press, 2018), 55. For the relevant biblical references, see Isaiah 40:3, Mark 1:1–­3, and John 1:22–­23 of the Vulgate translation of the Old and New Testaments. For the avoidance of doubt, I do not consider the place of prophetic madness to be somehow outside of power; I consider it, rather, as a place in which the madness of critique can see through and challenge the existing power formations. 8. See, e.g., Romans 3:9 in the New Testament, or the Qur’ān 53:31–­32. 9. Shahnaz Khan, Zina, Transnational Feminism, and the Moral Regulation of Pakistani Women (Vancouver: University of British Columbia Press, 2006), 16. 10. Ibid., 20.



A Cry for Madness

429

11. Gayatri Chakravorty Spivak, “Discussion: An Afterword on the New Subaltern,” in Subaltern Studies XI: Community, Gender and Violence, ed. Partha Chatterjee and Pradeep Jeganathan (New York: Columbia University Press, 2000), 305. 12. Nighat Said Khan, “Identity, Ideology and Religion,” in Khan and Zia, Unveiling the Issues, 118. 13. See generally Michael Hardt and Antonio Negri, Empire (Cambridge, Mass.: Harvard University Press, 2000). 14. Similarly, Janet Halley describes paranoia of an immensely threatening state and perpetual feminist fragility; see “Dancing across the Minefield,” 5. 15. See, e.g., Sarfaraz Hussain Mirza, Muslim Women’s Role in the Pakistan Movement (Lahore: Panjabi Adabi Academy Press, 1969). 16. Mumtaz and Shaheed, Women of Pakistan. 17. We are still reminded, for example, that the word “feminism” does not exist in Pakistan; see Shaheed, “The Women’s Movement in Pakistan,” 89. 18. See, e.g., Khan, “The Women’s Movement Revisited,” 187–­94. 19. Tahmina Rashid, Contested Representation: Punjabi Women in Feminist Debate in Pakistan (Karachi: Oxford University Press, 2006), 124. 20. Ibid., 125. 21. Speech at Aligarh, 1944, quoted in Shahnaz Rouse, Shifting Body Politics: Gender, Nation, State in Pakistan (New Delhi: Women Unlimited, 2004), 20. 22. Nighat Said Khan, “The Political Economy of Pakistan,” in Khan and Zia, Unveiling the Issues, 8. 23. Ibid., 6, 8. 24. See, e.g., Kamran Asdar Ali, “Communists in a Muslim Land: Cultural Debates in Pakistan’s Early Years,” Modern Asian Studies 45, no. 3 (May 2011): 501–­34; Kamran Asdar Ali, “Progressives and ‘Perverts’: Partition Stories and Pakistan’s Future,” Social Text 108, no. 3 (Fall 2011): 1–­29; and generally Kamran Asdar Ali, Communism in Pakistan: Politics and Activism, 1947–­1972 (London: I. B. Tauris, 2015). 25. Khan, “The Political Economy of Pakistan,” 15. 26. Anis Haroon, “The Women’s Movement in Pakistan,” in Khan and Zia, Unveiling the Issues, 180. 27. Ibid. 28. Shaheed, “The Women’s Movement in Pakistan,” 99. 29. Haroon, “The Women’s Movement in Pakistan,” 183. 30. Ibid. 31. Mumtaz and Shaheed, Women of Pakistan, 127. 32. Shaheed, “The Women’s Movement in Pakistan,” 101. 33. Farida Shaheed and Neelam Hussain, Interrogating the Norms: Women Challenging Violence in an Adversarial State (Colombo, Sri Lanka: International Centre for Ethnic Studies, 2007), 93. 34. Shahnaz Rouse, “Women’s Movement in Pakistan: State, Class, Gender,” Dossier 3 (1988): 13. 35. Rashid, Contested Representation, 178. 36. See, in particular, Khan, “The Women’s Movement Revisited,” 187–­94.

430

Vanja Hamzić

37. Asma Jahangir and Hina Jilani, The Hudood Ordinances: A Divine Sanction? (Lahore: Rhotas Books, 1990), 165. 38. Rashid, Contested Representation, 135. 39. Shahnaz Khan, “Locating the Feminist Voice: The Debate on the Zina Ordinance,” in Ahmad, Pakistani Women, 145. 40. Amina Jamal, “Gender, Citizenship, and the Nation-­State in Pakistan: Wilful Daughters or Free Citizens?,” in Ahmad, Pakistani Women, 122. 41. Khan, “The Women’s Movement Revisited,” 192. 42. Ibid. 43. Ibid., 190. 44. Ibid., 189. 45. Ibid., 193. 46. Weiss, Interpreting Islam, Modernity, and Women’s Rights in Pakistan, 152. 47. Khan, “The Women’s Movement Revisited,” 192. 48. Rashid, Contested Representation, 142, 144. 49. Ibid., 144. 50. Ibid., 146. Despite its prominent role at the fourth United Nations Conference on Women, the Bhutto government failed to implement the National Action Plan as promised in Beijing. 51. For an illuminating discussion, see Weiss, Interpreting Islam, Modernity, and Women’s Rights in Pakistan, 78–­84. 52. Shaheed and Hussain, Interrogating the Norms, 99. 53. See, e.g., bell hooks, Teaching to Transgress: Education as the Practice of Freedom (London: Routledge, 1994). 54. Khan, Zina, Transnational Feminism, and the Moral Regulation of Pakistani Women, 22. 55. Spivak, “Discussion,” 329. 56. Saba Mahmood, “Retooling Democracy and Feminism in the Service of the New Empire,” Qui Parle 16, no. 1 (Summer 2006): 124. 57. Saigol, The Pakistan Project, 349. 58. Ibid., 350. The Harvard Analytical Framework, also known as the Gender Roles Framework or Gender Analysis Framework, was developed by the former Harvard Institute for International Development in cooperation with the United States Agency for International Development as “a tool to understand differences between men and women in relation to their participation [in the economy];” C. Ndungo, C. Masiga, I. Bekalo, W. O. Ochola, and R. A. Mwonya, “Gender and Natural Resource Management,” in Managing Natural Resources for Development in Africa: A Resource Book, ed. Washington O. Ochola, Pascal C. Sanginga, and Isaac Bekalo (Nairobi: Nairobi University Press, 2010), 239. 59. Saigol, The Pakistan Project, 347. 60. Weiss, Interpreting Islam, Modernity, and Women’s Rights in Pakistan, 83. 61. Rashid, Contested Representation, 170. 62. Ibid., 172. 63. Weiss, Interpreting Islam, Modernity, and Women’s Rights in Pakistan, 80. 64. Ibid., 82. 65. Saigol, The Pakistan Project, 34.



A Cry for Madness

431

66. Ibid., 347. 67. Mahmood, “Retooling Democracy and Feminism in the Service of the New Empire,” 137. 68. A typical expression of such commitment can be found in Khan, “Identity, Ideology and Religion,” 117–­25. 69. Afiya Shehrbano Zia, “The Reinvention of Feminism in Pakistan,” Feminist Review 91 (2009): 38; Fawzia Afzal-­K han, “Performative Interventions in the Body Politic of Pakistan,” Drama Review 54, no. 2 (Summer 2010): 26. 70. Shaheed, “The Women’s Movement in Pakistan,” 96. Such portrayals, admittedly, do have some purchase. 71. Jama’at-­e-­Islami is a right-­w ing religious political party and social conservative movement, founded in 1941 by the populist Muslim religious and political reformer Abul A’la Maududi (1903–­79). 72. Rashid, Contested Representation, 123. 73. Afiya Shehrbano Zia, “Faith-­Based Politics, Enlightened Moderation and the Pakistani Women’s Movement,” Journal of International Women’s Studies 11, no. 1 (November 2009): 234. 74. Amina Jamal, “Feminist ‘Selves’ and Feminism’s ‘Others’: Feminist Representations of Jamaat-­e-­Islami Women in Pakistan,” Feminist Review 81 (2005): 69. See also Amina Jamal, “Feminism and ‘Fundamentalism’ in Pakistan,” in Dispatches from Pakistan, ed. Madiha R. Tahir, Qalandar Bux Memon, and Vijay Prashad (Minneapolis: Minnesota University Press, 2014), 104–­20. 75. Weiss, Interpreting Islam, Modernity, and Women’s Rights in Pakistan, 77. These lines, however, should not be read as a criticism of Islamic feminism, which I understand to be a wider and by far more sophisticated movement. Rather, I question the uncritical reliance of some strands of Pakistani Governance Feminism on the international human rights system, as a panacea for all “religious problems.” 76. See generally Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (New York: Routledge, 2000). 77. See Farida Shaheed with Aisha L. F. Shaheed, Great Ancestors: Women Asserting Rights in Muslim Contexts (Lahore: Shirkat Gah, 2004). 78. Rouse, Shifting Body Politics, 38–­39. 79. Rashid, Contested Representation, 256. 80. Ibid., 257. 81. Ibid., 203. 82. Ibid., 257. 83. Shaheed and Hussain, Interrogating the Norms, 111. 84. Sadaf Ahmad, “AASHA’s Approach to Instituting Sexual Harassment Legislation in Pakistan,” in New South Asian Feminisms: Paradoxes and Possibilities, ed. Srila Roy (London: Zed Books, 2012), 50–­51. See also the Pakistan Penal Code (Act XLV of 1860), § 509, and the Protection against Harassment of Women at Workplace Act (Act IV of 2010). 85. Ahmad, “AASHA’s Approach to Instituting Sexual Harassment Legislation in Pakistan,” 44. 86. Ibid., 50. For an autobiographical account of these events, see Fouzia Saeed, Working with Sharks: A Pakistani Woman’s Story of Countering Sexual Harassment

432

Vanja Hamzić

in the United Nations from Personal Grievance to Public Law (McLean, Va.: Advances Press, 2013). 87. Ahmad, “AASHA’s Approach to Instituting Sexual Harassment Legislation in Pakistan,” 61. 88. Ibid., 57. 89. Ibid., 61. 90. Rashid, Contested Representation, 176. 91. Rubina Saigol, “Introduction,” in Engendering the Nation State, vol. 2, ed. Neelam Hussain, Samiya Mumtaz, and Rubina Saigol (Lahore: Simorgh Women’s Resource and Publication Centre, 1997), 1. 92. For a detailed discussion of khwajasara histories, kinship, sociality, and politics, see Vanja Hamzić, Sexual and Gender Diversity in the Muslim World: History, Law and Vernacular Knowledge (London: I. B.Tauris, 2016), 141–­89. The latest legal development concerning khwajasara rights and an official “third gender” status is the Transgender Persons (Protection of Rights) Act, 2018, passed on March 7, 2018, by the Senate of Pakistan. For the text of this important act, see www.senate.gov.pk /uploads/documents/1520932539_231.pdf. 93. Remarkably, it is often the lack of faith in state promises, common among the various strata of a lower-­class neighborhood, that ensures their solidarity and cooperation with those whom the state had promised something—­such as the community of khwajasara. 94. Khan, “The Women’s Movement Revisited,” 192. 95. Ibid. 96. Many members of non-­k hwajasara collectives of sexually diverse and gender-­ variant subjectivities with whom I have interacted in Pakistan maintained that their exclusion from domestic feminist circuits has always been premeditated and systematic. Others disagreed, citing individual examples of their inclusion into feminist projects. Feminist organizations were somewhat ambiguous and often apologetic in responding to this question, with some claiming that their doors were “always open” to sexually diverse and gender-­variant Pakistanis, albeit “to no avail,” while others found this to be an element of their work that could not be publicly discussed. 97. Kamran Asdar Ali, “Women, Work and Public Spaces: Conflict and Coexistence in Karachi’s Poor Neighborhoods,” International Journal of Urban and Regional Research 36, no. 3 (May 2012): 586. Ali’s analysis of the processes of repair and maintenance (following the work of cultural geographer Nigel Thrift) of women’s spaces in Karachi’s low-­income neighborhoods, although not directly related to khwajasara, is relevant inasmuch as it describes a comparable set of techniques used to maintain social cohesion in a lower-­class Pakistani neighborhood. 98. As noted earlier, for the relevant biblical references to vox clamantis in deserto, see Isaiah 40:3, Mark 1:1–­3, and John 1:22–­23 of the Vulgate translation of the Old and New Testaments. 99. The former spirit of a defiant feminism is perhaps best exemplified in the inscription on the dedication page of Asma Jahangir and Hina Jilani’s book, published in 1990, fiercely critical of the Pakistani state. The inscription reads: “Dedicated To Hope”; see Jahangir and Jilani, The Hudood Ordinances. That this dedication may



A Cry for Madness

433

seem “cheesy” or “sloganist” to the contemporary reader is, in a way, yet another testimony to the prevalence of the circumspect neoliberal logic—­a nd tune—­of social and political action. 100. Vanja Hamzić, “The Resistance from an Alterspace: Pakistani and Indonesian Muslims beyond the Dominant Sexual and Gender Norms,” in Religion, Gender and Sexuality in Everyday Life, ed. Peter Nynäs and Andrew Kam-­Tuck Yip (Surrey, U.K.: Ashgate, 2012), 17–­35. 101. To paraphrase Žižek’s analysis of “the desert of the real,” which is not incongruous with our story here, see generally Slavoj Žižek, Welcome to the Desert of the Real (London: Verso, 2002).

C H A P T E R 17

Finding and Losing Feminism in Transition The Costs of the Continuum Hypothesis for Women in Colombia ISABEL CRISTINA JARAMILLO SIERRA

Since the early 2000s, the framework of transition has become one of the dominant frameworks for political, social, and even economic change following periods of national turmoil, war, or economic crisis.1 Feminists have thus been confronted with questions regarding how feminism should speak to, in, and about, transitions.2 Globally, feminism has come to be identified with the idea that, in war, patriarchy manifests itself through sexual violence, therefore as claiming that women’s sexual victimization during war must be understood as the most important manifestation of male domination and should be severely sanctioned.3 Locally, feminists have faced the dilemma of speaking within the framework of transition to obtain the redistribution of resources to women, as the transition becomes the new development strategy, the blueprint for institution building, and the greatest reparation project for their nations in the foreseeable future, while knowing that the framework is biased toward sexual violence and therefore might not help many deeply affected women get the resources they need to recover. This chapter seeks to contribute to our understanding of Governance Feminism by examining the mobilization of Colombian feminists with regard to the Colombian Transition that was inaugurated in 2005 and continues to this day in this country.4 I will show how feminists got involved, first as designers of and bureaucrats in a set of transition institutions and later with transition as a teleological and eschatological method to engage social change.5 I will argue that in this process they 434



Finding and Losing Feminism in Transition

435

have both transformed the collective understanding of war and damage in Colombia by proclaiming that women have suffered most in war and produced a version of feminist universalism according to which women who have suffered in war have suffered the most.6 This feminist universalism, I claim, creates blind spots with regard to the contradictions that beset transition and the long-­run costs to women of being especially favored in the assignment of humanitarian aid. I have divided the chapter into four parts. The first part provides an account of the Transition, including a brief description of the main actors and stakes. The second part presents the three framings that currently struggle to obtain hegemony over the meaning of the Transition, namely, the structural, liberal, and revisionist framings. The third part explains how Colombian feminists became involved with the Transition, the institutional changes they have achieved, and the knowledge they have contributed about women’s victimization in war. It concludes that, as the liberal framing became dominant, most feminist nongovernmental organizations (NGOs) and scholars have insisted on a view of women as the worst victims of armed conflict and armed conflict as the worst damage endured by women. The fourth part reflects on the meaning of this hyperbolic conflation of patriarchy with war, showing some of the costs that women have shouldered and may shoulder in the future, in a Transition that is ostensibly but not actually responsive to women.

The Colombian Transition Unlike most Latin American countries, Colombia has a political history marked not by caudillismo and dictatorships but rather by the coexistence of regularly held elections and civil strife between opposing political parties. After Colombia obtained independence from Spain in 1820, elections have been carried out regularly according to different constitutional designs. Only once has independent Colombia had a military-­led government, run by General Gustavo Rojas Pinilla (1953–­58).7 Parallel to the formally legal transfers of power, however, there has been intense conflict between opposing political parties: from the 1850s to the 1950s disagreement was modeled along the conservative–­liberal divide, while from the 1950s the establishment has battled with and against counterinsurgent and insurgent groups. The hinge between this pacific electoral life and the turbulent life in the

436

Isabel Cristina Jaramillo Sierra

streets has been composed of multiple peace agreements and institutional experiments to account for, and settle counts with, the past.8 The idea of having a transition, or being in a transition, nevertheless, appeared only in the last ten years in the context of the formalization of negotiations with the counterinsurgent paramilitary organizations. The concept of transition was used first by human rights defenders and NGOs that believed the peace accord President Álvaro Uribe Vélez (2002–­10) reached with paramilitary organizations was unacceptable because it granted these combatant organizations political standing as self-­defense groups and failed to guarantee truth and reparations to their victims. Activists brought these arguments before the Constitutional Court in a challenge to the peace accord (Law 975 of 2005) and won a ruling requiring the protection of victims’ rights.9 For the first time in any official document, the Constitutional Court used the expression “transition.” It established that, because the peace accord with the paramilitary groups produced a transition, the concept of transitional justice must be used to find the fair balance between the need for peace, a right in the Colombian 1991 Constitution, and the need to secure the rights of victims, established both in national and international law. The Constitutional Court thus opened up a period of “transitional justice without transition,” as some have called it, that comprises fragmented efforts to reduce the number of contenders to the legitimate use of force in Colombia and an important set of legislative and institutional innovations geared toward guaranteeing the rights of victims.10 New institutional forms abound: a Center for Reconciliation and Reparations, a Center for Historic Memory, a Unit for Land Restitution, a Unit for the Reparation of Victims, and specialized prosecutors and judges for cases concerning the crimes of former paramilitary members, among others.11 It is this particular and local meaning of transition that I will use when referring to the Transition as mentioned earlier. Thus, I will focus on events that took place between 2005 and 2015 and are connected to the peace agreements reached with the paramilitary.

Main Actors in the Transition Peace agreements leading to the demobilization of major paramilitary organizations in the country were led by President Álvaro Uribe Vélez, who nevertheless failed to convince the major opposing group,



Finding and Losing Feminism in Transition

437

FARC (Fuerzas Armadas Revolucionarias de Colombia, or Colombian Armed Revolutionary Forces), to enter into simultaneous negotiations. The paramilitary groups that participated in the negotiations were of mixed origin. Some groups were heirs to the self-­defense groups created by drug traffickers in the 1980s to fend off competitors and guerrillas attempting to colonize strategical territories.12 The first of these, MAS (Muerte a Secuestradores, or Death to Kidnappers), is still remembered for its atrocious crimes in the cities and into the countryside of Medellín and Cali. This group eventually moved out of the cities and into the countryside as many drug lords negotiated their surrender, guaranteeing in this way their personal safety and that of their families, and securing trade routes became a priority. It was not long before the model adopted by MAS was replicated through much of urban and rural Colombia.13 Other groups were created under legislation introduced in the early 1990s by then senator Álvaro Uribe Vélez as self-­defense organizations of landowners (CONVIVIR [Servicios Especiales de Vigilancia y Seguridad Privada, or Specialized Private Surveillance and Security Services]). Landowners were considered to be, and thought themselves to be, in need of protection against guerrillas that persecuted them to force changes in their capitalistic ways and obtain funds for the revolution, mainly FARC. Even though the CONVIVIR statute was declared unconstitutional some years later, the groups continued to operate illegally until the end of the peace process. By 1997, most groups in the northern and central parts of the country unified under Carlos Castaño to create Autodefensas Unidas de Colombia (or the United Self-­Defense Groups of Colombia). By 2006, government reported forty active groups comprising thirty thousand men. Although the Colombian state has failed to accept that there was a terrorist policy implemented to counteract guerrilla groups, at least ten decisions of the Inter-­American Court of Human Rights have found enough proof to condemn the Colombian state for collaborating with paramilitary groups at least since the 1980s. Collaboration has come in the forms of lending trucks and providing information, but also in taking part in the torture and killing of civilians thought to be aiding guerrilla groups or somehow interfering with the economic interests of paramilitary organizations.14 Involvement of high-­ranking military officials has been progressively uncovered both by the courts, Supreme Court and State Council, and the Center for Historic Memory.

438

Isabel Cristina Jaramillo Sierra

FARC, in comparison, was created in the 1960s by several self-­ defense peasant groups that decided to embrace communist ideas and change their mode of operation to suit the goal of full transformation of the Colombian state into a socialist state.15 While initially it was composed of a few hundred men and very few guns, it reached more than 20,000 combatants in the early 2000s and by 2015 had around 7,800 combatants and about 10,000 unarmed supporters, according to military intelligence. The expansion of FARC has been mainly the result of a decision to become a national guerrilla and to engage in drug trafficking to increase revenue and modernize equipment. Its decline has been attributed to the intense persecution deployed by the Colombian government since 2002, supported by resources provided by the United States under Plan Colombia. Plan Colombia has been one of the largest military funding programs deployed by the United States in the last fifty years, comparable only to the size of its investment in Egypt and Vietnam. FARC also stands out in Colombian recent history as the first guerrilla to attempt institutionalization through a political party, UP (Unión Patriótica, or Patriotic Union). This political party was created in 1985 in the context of peace negotiations between FARC and President Belisario Betancur (1982–­86). For FARC, UP was to be clearly distinguished from the Communist Party and from themselves not only in its mode of operation and participation in formal elections but in its aspirations: it should strive not for a transition to communism but rather for the realization of bourgeois liberalism in a country in which, in their opinion, even that was “revolutionary.”16 In 1986, 300 militants of UP were killed, but UP managed to obtain about 5 percent of the seats of the Senate and House of Representatives and a sizable number of positions in local government bodies.17 The following year another 550 militants of UP were killed, as well as two of its most prominent leaders (Gilberto Vieira and Bernardo Jaramillo). Survivors claim that more than two thousand UP militants were killed before the party ceased to exist in 1991.18 FARC launched a new military offensive in 1991 after more than six years of cease-­fire.

Stakes in the Transition The exact sum of death and damages caused by paramilitary groups is uncertain for political and legal reasons. Politically, numbers are



Finding and Losing Feminism in Transition

439

accused of being biased depending on who collects them, and successive governments have been shy in acknowledging the actions of paramilitary groups. Legally, under Law 1448 of 2011, victims are not forced to attribute damages to the paramilitary or guerrilla to receive humanitarian aid and administrative reparations. The CMH (Centro de Memoria Histórica, or Center for Historic Memory), charged with giving an account of Colombian armed conflict, and specifically of the role of paramilitary groups, established that there had been a total of 220,000 violent deaths over the fifty-­four-­year period from 1958 to 2012 in its Basta Ya! report. Of this total, only 40,787 were combatants according to existing records, and only 11,238 of these deaths occurred between 1958 and 1985. Most civilian deaths occurred between 1985 and 2003. Besides violent deaths, the National Registry of Victims reports the following totals: 25,007 disappeared, 1,754 victims of sexual violence, 6,421 children forcibly recruited, and 4,744,046 internally displaced persons. The consultancy group Cifras y Conceptos, additionally, determined there have been 27,023 kidnappings associated to the armed conflict between 1970 and 2010. The Presidential Program for the Care of Victims of Landmines reports 10,189 victims of landmines between 1982 and 2012.19

A little more than half of the individuals claiming damages assert that they were injured by guerrillas, but the case studies of the CMH show that paramilitary groups were particularly cruel and sanguinary in their strategies to persuade the civilian population to demobilize and obey in order to facilitate the operation of drug traffickers, cattle ranchers, and multinational corporations. Guerrillas have been more prone to attack the civilian population to extract resources for their operations; thus, they mostly kidnapped landowners, drug traffickers, industrials, foreigners, workers in oil and mining companies, and other people who could be of use to them. Beyond the interest of the general population in decreasing insecurity in the rural areas, and reducing individual and collective losses associated with this insecurity, paramilitary groups have emphasized a commitment to the status quo, especially in relation to existing land tenure arrangements; guerrillas, and particularly FARC, for their part,

440

Isabel Cristina Jaramillo Sierra

have stressed the need for a redistribution of land and oil and mining revenues, enhanced political representation for leftist parties, and the truth about government persecution of the Left.20

Framings for the Transition Having a long tradition of academically and politically reflecting on war and violence, Colombians have been far from passive in accepting the international consensus on transitions. Intense debate subsists about how to characterize the situation Colombians are in, what is the best way to improve on that situation, and who should bear most of the costs of change. I will call these positions the “structural framing” (with a cultural and a critical version), the “liberal framing,” and the “revisionist framing.” Although these framings have not been adopted by all sides of the confrontation—­the illegal armed groups and successive governments—­or political parties, and only the revisionist framing has a clear leadership in former president and now senator Álvaro Uribe Vélez, this description of the current debate is useful to understand how feminists are positioned in regards to the Transition. Indeed, it will allow me to show that feminist choice for the liberal framing did not happen in a scenario free of controversy, where liberals had already defeated their contenders. I will return to this in the fourth part.

The Structural Framing of the Colombian Situation A significant number of Colombian scholars have refused to see political violence, meaning confrontation between the military, paramilitary, and guerrillas, as an isolated or exceptional event in political life. As a matter of fact, the claim that political violence is just one manifestation of violence in a context impregnated by injustice and aggressive behavior prevailed in public debate at least from the 1980s and until the 2000s. For the cultural vision, this meant that violence had become the way in which conflict was dealt with in Colombian society. The group that came to be known as the violentólogos (violentologists) was successful in describing the country as having inherited the unruly manners of conquistadors and the misunderstandings of colonialism to the point of making violence part of Colombian culture: violence was present in the streets in the form of high levels of mortality for car-­and motorcycle-­related accidents, in politics in the form of



Finding and Losing Feminism in Transition

441

corruption and extortion, and in homes in the form of violence against women and children.21 The solution, therefore, lay far beyond peace agreements with any illegal groups. It demanded, in their opinion, enormous changes in Colombian society, starting with its territorial organization and following with its political organization and its education policies. The guerrilla problem, which was only one of many problems in need of solution, should be faced with political reform that would allow enhanced political representation of parties in the Left. The cultural vision reached its apex of influence during the peace negotiations conducted in the 1980s by President Belisario Betancur (1982–­86) and the constitutional reform that followed in 1991. This reform not only included many of the changes suggested with regards to territorial organization and political representation but also gave the right to peace constitutional standing and weight. Three guerrillas demobilized and participated in the drafting of the new constitution. FARC, after the UP tragedy, remained in the margin. For the critical vision, then again, understanding violence as structural has led to the critique of binaries, such as those of perpetrator/ victim, war/peace, attack/quotidian life; and to demand more subtle and localized accounts of the past and prospects for the future. In his studies of the narratives of demobilized paramilitaries before transitional judges, for example, Iván Orozco has argued that the pressures exercised on those doing the confession to appear as pure evil, not only have turned their lives into caricature but also have led them to keep quiet about facts that could be relevant for the larger story that is being woven through those accounts.22Alejandro Castillejo, on his part, has worked to reveal the limitations of any possible truth to be constructed by memory institutions and the importance of keeping the “promise of transition,” namely, the hope of significant transformation and of settling accounts with the past, within the boundaries of such limitations.23 Lina Céspedes, Nina Chaparro, and Soraya Estefan, to give another example, have shown how in light of the strategies of occupation of paramilitary groups, the legal demand to find an “attack” can be extended to all the period of occupation, thus dissolving the fragile difference of war and peace for whole populations over long stretches of time.24 In this camp it would be correct to say that transition more than a result is a process and, therefore, commands our reflections about each particular act of definition for the exclusions

442

Isabel Cristina Jaramillo Sierra

that they enact.25 More than providing a recipe or a normative formula for the future, these critics hope to push for those who have not been allowed in, and also interrogate who is bearing the costs of the definitions.

The Liberal Framing of the Colombian Situation After the 1991 constitutional reform, the idea that Colombia has a constitutional democracy, where the rule of law is normal and violations of human rights are exceptional, has become dominant in the general understanding of the situation. According to this framing, the Colombian state enjoys democratic legitimacy and, in general, guarantees the human rights in its territory through the combined actions of the legislative, executive, and judicial branches. Those parts of the territory where these two conditions, democratic legitimacy and human rights, are not present are considered as exceptional and constantly mapped out to reassure their marginality. Groups seeking to replace the state in its functions are considered to be acting illegally and their actions characterized as crimes that should be prosecuted. Negotiating with these groups is admissible if it can help restore control over the territory to the Colombian state, and only if perpetrators guarantee that victims of human rights violations will be restituted to their previous situation. Amnesties and indults as a general policy to deal with illegal actions are not acceptable from this point of view. But a prolonged transition that does not allow people in general to feel and know that the normal has been restored and the benefits of peace can be finally reaped, is not acceptable either. Transition here, consequently, is thought of using a teleological and eschatological model that accepts a clear distinction between a before and an after, a set of norms that can be used to evaluate the situation before and after in order to identify “progress,” and the existence of an elite or a state that knows the norms and can have them bear on the situation to obtain such “progress.”26 It is relevant to this model of transition that progress in political terms shall be accompanied by restoration of individual rights, that is, by identifying individuals who were damaged, calculating the cost of the damages endured, and paying these sums. While some leeway can be imagined to expedite and facilitate normalization, the notion that transition itself will be used



Finding and Losing Feminism in Transition

443

to transform the ex ante distribution of resources is not acceptable in this framework. The liberal framing has been relevant to much of the work being done with regards to the identification, registration, and reparation of victims, as well as with the legal reform enacted to start formal negotiations with FARC. In this sense, it is safe to say that it has become the dominant framing in the Transition. The structural framings, however, are constantly restored in the debate as the reality of the size of the victim population and its characteristics have become known. On the one hand, the task of fully restituting victims to their previous situation appears daunting.27 On the other hand, the previous state of things does not seem particularly attractive as a result of so many efforts.

The Revisionist Framing of the Colombian Situation Former president Álvaro Uribe Vélez has been adamant in describing Colombia’s situation as one of normality or peace ever since the demobilization of the paramilitary.28 According to him and his followers, which until 2018 controlled one-­third of the seats in the Senate and a sizable number of seats in the House of Representatives, FARC is a terrorist group that has lost any possibility of exercising actual control over Colombian territory. Uribe has maintained that there should be no peace negotiations with FARC because the group was shown to operate in bad faith in the two previous negotiations. He also argues that it is inadmissible to discuss with FARC land reform, mining and oil exploitation, conditions for the production of truth, or political representation since they are no more than terrorists. Even if not very elaborate, this position got Uribe and thirty more in his party elected to the Senate in the 2014 election.

Feminists in the Transition Colombian feminism has not had a long or lustrous history; some prominent social movement scholars even deny that there has ever been a feminist movement in Colombia.29And even if some feminists speak of a moment of effervescence in the shape of radical mobilization in the 1960s, it is safe to say that since the 1980s feminism has been

444

Isabel Cristina Jaramillo Sierra

located in a few NGOs and within some universities.30 The most visible actors among the NGOs are Casa de la Mujer, which originated as a shelter for victims of domestic violence; Sisma Mujer, self-­defined as a liberal NGO seeking to increase women’s political participation; Humanas, also a self-­proclaimed liberal organization concerned with the protection of women’s human rights; Red Nacional de Mujeres, a network of individuals of different tendencies and expertise; and Profamilia, a sexual and reproductive health service provider affiliated with Planned Parenthood. On the academic side, the Gender School at Universidad Nacional, Bogotá, and the Center for Gender Studies at Universidad del Valle, Cali, are the most prominent. Most of these organizations and individuals come from the tiny Colombian middle class but carry the class guilt that comes with being in a developing country; they cannot speak plainly of women’s oppression but have always been expected to explain how feminism is not a bourgeois excuse to further expropriate the poor and prevent development.31 The result is a feminism that, without embracing socialism, advocates for the causes of poor women. That is, Colombian feminism works in and for the intersection of patriarchy and poverty: providing services for pregnant teenagers expelled from their homes, bringing contraceptives to the poorest neighborhoods, creating shelters for poor women, working on body consciousness with women in the poorest neighborhoods, creating consciousness among poor women about the importance of having quotas for women in the executive branch of government, among other interesting twists of liberalism for the poor.32 In this section I provide an account of feminist involvement with the Transition in Colombia. I start by explaining how feminists got involved with the Transition, that is, the particular actors and events that marked the engagement of Colombian feminists with the peace process with the paramilitary and FARC. Then I point out the rationales furthered by different feminists to explain their participation in the Transition, the tangible products of that participation, and the many ways in which feminists have influenced the Transition.

Feminist Pioneers in Mobilization around Peace The women question in public debates about armed conflict in Colombia was initially asked by two groups: Ruta Pacífica de Mujeres (RPM, or the Women’s Pacific Route) and Iniciativa de Mujeres por la Paz



Finding and Losing Feminism in Transition

445

(IMP, or the Women’s Initiative for Peace).33 The first network, led by Casa de la Mujer, had a traceable feminist ancestry, even if not every organization supported the feminist agenda of the leaders.34 The second network sprang from the heart of labor unions. It had at its head women with strong trajectories in labor unions that were both struggling for recognition by an irresponsive leadership and trying to reinvent themselves as unions were losing power.35 The reasons for Casa de la Mujer’s decision to mobilize for peace have been a matter of some debate in the last years. Some have argued that Casa de la Mujer’s involvement in peace mobilization was a way to consolidate its alliance with Senator Piedad Córdoba, who, in exchange for their support, contributed to the appointment of Olga Amparo Sánchez (director of Casa de la Mujer) as director of the Agency for Women’s Equality (Dirección Nacional para la Equidad de la Mujer).36 Casa de la Mujer, for its part, has argued that its interest in peace negotiations has been connected to its commitment to work with the poorest women, and its realization that women living in war areas are indeed the ones that are faring the worst. Feminists from Casa de la Mujer have explained that they experienced the intensity of the plight of women living in areas of war when they were called by some organizations of women in the northern region of Urabá after one of many massacres they endured.37 Most organizations in RPM, indeed, are organizations of victims (mothers and widows) and uneducated poor women struggling to make their ends meet that are not aligned with Casa de la Mujer’s feminist ideas and battles.38 After 2005, RPM kept a low profile in the Transition. RPM strongly criticized former president Álvaro Uribe Vélez’s approach to peace negotiations and refused to participate as agents in the Transition until 2010, when he left power. They claimed that women could not trust the state to reach emancipation and that there was very little room for the improvement of the lives of women in a peace negotiation that excluded the guerrillas operating in the territory. From 2005, RPM has worked on a consciousness-­raising strategy among women who have been victims of armed conflict and on educational workshops on the rights of women.39 The trajectory followed by IMP has been very different. IMP was the result of an invitation by the Unión Sindicalista Obrera (USO) to consolidate a Permanent Assembly of Civil Society for Peace

446

Isabel Cristina Jaramillo Sierra

(Asamblea Permanente de la Sociedad Civil por la Paz, or APSCP), that is, a network of organizations within civil society that would contribute to and supervise peace negotiations with illegal groups operating in the territory.40 USO, a union of workers from the oil industry, was both concerned with increased violence faced by union members and optimistic about peace since President Andrés Pastrana’s (1998–­2002) announcement of the start of peace negotiations with FARC.41 The APSCP convened the first Assembly of Women in 1998.42 In this Assembly, Patricia Buriticá, who had been working within another one of the major unions—­Central Unida de Trabajadores—­ toward the construction of a feminist agenda, joined efforts with Organización Femenina Popular to create a women’s agenda for peace. This agenda, which mentioned women only when demanding full respect for all of women’s rights, was later adopted by Patricia Buriticá when she created IMP in 2001 in a gathering in Sweden, funded by the Swedish government, about women’s experiences in working for peace.43 As opposed to RPM, IMP decided to join President Uribe Vélez’s peace efforts in 2003 and accepted the invitation to become part of the National Commission for Reparations and Reconciliation (Comisión Nacional para la Reparación y la Reconciliación, or CNRR) created by Law 975 of 2005; Patricia Buriticá and Ana Teresa Bernal became members of CNRR as representatives of civil society. At this point, IMP was the only women’s organization that could muster being on the side of Álvaro Uribe Vélez.44 Buriticá has used two arguments, which became dominant justifications for feminist involvement in transitional framings and institutions, to explain what inspired such a bold move. First, only from within transitional institutions can something be achieved in terms of the protection of women who have been victims of armed conflict.45 Second, transitional institutions have demonstrated in practice to be permeable to the claims brought about by women. Buriticá stressed the ability of IMP to introduce seven articles of the Rome Statute into Law 975 of 2005 as proof of the opportunities for women’s mobilization within the struggle for peace.46 IMP’s stance toward transitional justice governmentality has reached well beyond the participation of Buriticá and Bernal in CNRR. In fact, IMP has been central to most legal mobilization around women’s rights



Finding and Losing Feminism in Transition

447

as victims in Colombia’s armed conflict, including claims before the Constitutional Court and lobbying before Congress for the approval of laws favoring women as victims.47

Feminists within Transitional Governmentality Since 2005, when the Transition officially began, feminists of a variety of organizations, including feminist scholars, have participated in many ways in the institutions of transitional justice. First, as has already been mentioned, they have been part of the CNRR. CNRR was created by article 50 of Law 975 of 2005, which established that out of the five Commission members at least two should be women. CNRR, which operated from 2005 until 2011, was in charge of reporting on the causes of armed conflict, supporting victims in their claims before the courts, guaranteeing reparations for victims, coordinating the activities of regional bodies in charge of land restitution, and furthering actions to promote reconciliation (article 51, Law 975, 2005). As members of CNRR, Buriticá and Bernal have demanded, and have been somehow successful, including a gender expert in every report and program supported by CNRR, as well as experts on Indigenous rights and Afro-­Colombian rights.48 The presence of these experts has yielded concrete results in reports concerning the role of women in Colombia’s armed conflict, reports on the demobilization of members of the paramilitary and guerrilla groups, and reports on reparations to victims of the armed conflict. These reports have been crucial in shaping public policy, creating new institutions for the Transition, and establishing the transitional agenda. For the construction of the reports on the causes of the armed conflict in Colombia, CNRR summoned a group of academics that would work under the leadership of Gonzálo Sánchez, professor of sociology at Universidad Nacional de Colombia and former member of the truth commission created by President Betancur (1982–­86) to explain the origin and persistence of armed conflict in Colombia.49 María Emma Wills, former member of the Gender School at Universidad Nacional de Colombia, was selected as coordinator of the gender component of the report. Wills brought her feminism to the work of the Historic Memory Group (Grupo de Memoria Histórica, or GMH) in several ways. First, she convened a group of feminists—­both from academia and from the key NGOs in Colombian feminism—­to discuss the

448

Isabel Cristina Jaramillo Sierra

methodology that should be used in the report on gender. She tried in this way to create an audience and interlocutors for her ideas under the premise that knowledge is a collective and not individual endeavor. She was the only member of the GMH to share her ideas in this way. Second, she decided on a methodology that required direct participation of women victims, which meant extensive traveling around the country for over four years. The methodology chosen moved away from viewing women only as victims who experienced loss and promoted consciousness-­ raising about women’s situation as women within their communities and about their possibilities of mobilizing for change.50 Third, she worked to extend the notion of sexual violence beyond rape to include sexual slavery, forced pregnancies, forced marriages, and forced abortions, among other harms.51 For this, she used her direct contact with women victims to go beyond official data that still were reporting only rape and looked for paradigmatic cases that would shed light on the particularities of women’s experience in war. Fourth, she worked to find instances of women’s victimization beyond sexual violence, reporting on cases of women killed and tortured for their leadership within their communities.52 For reports on demobilization, rehabilitation, and reparations, CNRR created another group of experts. In this group, the coordinator for gender and other special populations was María Cristina Hurtado, and for some time Alma Viviana Pérez, and the gender expert was Adriana Serrano. The first two, Hurtado and Pérez, had had long careers in government as gender experts, and the last, Serrano, was a full-­time professor in Universidad del Rosario.53 While much less prolific in publications about their activities and approaches, this group did produce three documents on demobilization, rehabilitation, and reparations that are worth mentioning. The first is a chapter within the second report of CNRR to Congress on the issue of demobilization and rehabilitation.54 This report reiterates the concern of CNRR over the fragility of rehabilitation processes for members of paramilitary groups who had demobilized, evidenced by the number of those who had joined criminal bands associated with drug trafficking. In regards to gender, the chapter points out those policies on demobilization and rehabilitation carried out by government until 2010 that have not deployed a gender perspective, indispensable because of the differences between female and male combatants. The report goes



Finding and Losing Feminism in Transition

449

over the data gathered by the Colombian Agency for Rehabilitation (Agencia Colombiana para la Reintegración, or ACR) to show these differences: women are only 6 percent of the total demobilized population; women are 12 percent of the population in the ACR’s programs; 25 percent of women in ACR’s programs are single mothers (only 6 percent of men are single fathers); 62 percent of women in ACR’s programs are unemployed (only 25 percent of men are unemployed); and women are also more prone to look for psychosocial support and become more dependent on the ACR’s programs, while men tend to become petty criminals and abuse alcohol and drugs.55 The report also shows how the remobilization of ex-­combatants—­t hat is, their return to criminal activities—­affects women negatively more than men, particularly in the forms of sexual and domestic violence: Women living with or around ex-­combatants reported an increased sense of insecurity.56 In sum, when thinking of demobilization, it should matter whether the ex-­combatant is a man or a woman. The second document produced by this CNRR group of gender experts was a 2011 handbook on the documentation of cases and support provided to women victims of gender violence within the armed conflict. The handbook is built upon the explicitly acknowledged premise that the reason for the low number of complaints regarding sexual violence in the armed conflict is the lack of training of public officials.57 The handbook was written using a template that was intended as a tool to gather information concerning gender violence against women related to the armed conflict for public officials in transitional institutions. The template, following recommendations by the United Nations, has questions about particular actions that could be interpreted as violence, not merely a general question concerning sexual violence.58 In addition, the handbook includes as annexes valuable information on the institutional routes to obtain redress or aid, with the responsibilities of each institution specified and classified according to the type of offense.59 The third document produced by the CNRR gender expert group concerns the possibility of collective reparations for women victims of armed conflict.60 The document, published in 2012, contributes to the local debates on collective reparations in two ways. First, it explains that even if women have been particularly affected by sexual violence, they have also been persecuted, threatened, and killed as union

450

Isabel Cristina Jaramillo Sierra

members, party militants, community leaders, and members of their political communities.61 Second, it reflects upon the pilot experiences of collective reparation conducted roughly from 2008 to 2011. From the section dedicated to lessons learned, it is worth highlighting the consideration of the delay in adopting a gender approach to the issue of collective reparations even though there was a clear legal mandate to do so, and the deliberation on the economic needs of the communities and the difficulty in making them understand that collective reparations were not the same as the provision of public services and infrastructure for the town.62 A second scenario of transitional governmentality opened up for women with the creation in 2011 of a special administrative Unit for the Attention and Reparation of Victims (UARIV) by President Santos (2010–­18) (article 166, Law 1448 of 2011; and decree 166 of 2012). In its four years of operation, UARIV has manifested a commitment to gender issues in three ways: (1) the director of UARIV is a woman, more than 50 percent of the staff with decision-­making powers are women, and, out of the women in decision-­making positions, around 70 percent had experience as gender experts;63 (2) UARIV created in 2013 a group on gender and women in charge of mainstreaming gender in the work of the agency; and (3) UARIV promoted the creation of a binding planning document establishing guidelines and budget for the reparation of women victims in armed conflict.64 More recently, the attorney general’s office created two task groups oriented to provide advice and research on gender issues in general and on violence against women in particular. The first group (Equipo de asesores en Género y Enfoque Diferencial) was created to provide advice to the attorney general on the implementation of the duties included in the National Policy on Gender Fairness for Women included in CONPES 161 (an official planning document) of 2013.65 This group, mostly interested in sexual violence, has included the issue of sexual violence in armed conflict and sexual violence as an international crime among its lines of work.66 The second group is a research group on gender violence within the Context Unit.67 The Context Unit is in charge of research on the context within which crimes take place in order to assign responsibility to the highest in command. As explained in the report by the attorney general, the Context Unit seeks to synthesize the



Finding and Losing Feminism in Transition

451

methods of the social sciences with research methods of criminal prosecution.68

Feminist Influence on the Transition Most feminists, however, have not participated in the Transition as public officials. Feminist scholars and NGO experts and activists have gradually influenced the Transition mainly through four strategies. First, they have documented and produced knowledge about the experience of women in armed conflict: they have written reports, documents, and handbooks that have been extensively cited by the reports and handbooks produced by transitional institutions. Second, they have trained and mentored as students, research assistants, and employees in their NGOs the young women who went on to participate in the lower echelons of the gender bureaucracies of transitional institutions. Third, female and feminist lawyers have litigated cases representing women’s interests before the Constitutional Court, the Special Peace and Justice Tribunals, and the Inter-­A merican Court. Fourth, they have created networks to independently support women victims of armed conflict and question government about its failings.

Documenting Women’s Victimization in Armed Conflict The most important documents about women’s victimization in armed conflict were produced by the network Mesa de Trabajo Mujer y Conflicto Armado (MTMCA), which includes Sisma Mujer, Casa de la Mujer, Humanas, and twenty other smaller feminist NGOs. MTMCA has been producing yearly reports about women’s victimization in armed conflict in Colombia since 2001.69 The strategies for gathering information of each NGO have been quite diverse and with different goals in mind. As to the methods for collecting information, the reports by MTMCA have been constructed using data grouped by the member organizations in their activities of service provision (psychosocial support, legal support, and sexual and reproductive rights counseling) with women victims. The individual organizations have combined reporting of cases they have come to know of as service providers, surveying and creating focus groups. With regard to the goals of the knowledge produced, each organization has been quite explicit about how it seeks to intervene in the

452

Isabel Cristina Jaramillo Sierra

transition. For MTMCA, the main goal is to question the high levels of insecurity endured by women in rural areas and in the peripheries of major cities. Their data tend to stress the severity of the incidents and the cruelty they involve, rather than the breadth or magnitude of the events portrayed.70 For Sisma Mujer and Humanas, the main goal has been to create arguments about the magnitude and characteristics of sexual violence within the armed conflict in order to be able to prove, within the judicial processes currently under way, that the violence is systematic and therefore may be considered a war crime.71 Casa de la Mujer, for its part, has focused on gathering information about women’s needs and interests in the future, through surveys and local focus groups.72 Casa de la Mujer has also participated in the systematization for publication of women’s interventions in the current peace process.73 It has stated that it aims at empowering women to participate in the political processes of the transition.74

Training Gender Bureaucrats Feminist NGOs have been crucial in training gender bureaucrats needed by the new gender institutions of transitional justice. In fact, it would have been impossible to create these institutions without the gender expertise that was created outside of the state in both NGOs and universities. Indeed, in 2013, the National Policy on Gender Fairness for Women established the creation of divisions in charge of coordinating, assisting with, and following its implementation in all public offices at the national and local level. Following this instruction, the National Planning Department (Gender Subdivision in the Social Development Program); the departments of Antioquia (Secretary for Gender Fairness for Women); Norte de Santander (Secretary for Women Issues); Valle del Cauca (Secretary for Women, Gender Fairness and Sexual Inclusion); Córdoba (Secretary for Women, Gender and Social Development); and the cities of Medellín (Secretary for Women) and Bogotá (Secretary for Women) have created divisions in charge of issues related to women and/or gender fairness. Some of these divisions are better staffed and more visible than others. The places that reveal greater feminist influence are the department of Antioquia and the cities of Medellín and Bogotá, where a substantial number of women acting as gender officials come from feminist NGOs. Patricia Builes, secretary



Finding and Losing Feminism in Transition

453

for gender fairness for women in Antioquia, for example, was the director of Corporación para la Vida—­Mujeres que crean and also acted as director of RPM for several years before accepting this position.75 The secretary for women of the city of Medellín, Paola Tamayo, also worked for the feminist NGO Centro de Recursos Integrales para la Familia before being appointed.76 The secretary for women in Bogotá, Martha Lucía Sánchez, has taught at the School of Gender Studies at Universidad Nacional de Colombia and worked for UN Women and the United Nations Development Programme. In her team of fourteen, Sonia Sylvana Palomino and Angélica Fabiola Olarte are the most connected to feminist NGOs, having worked for Casa de la Mujer. Six more have experience with international organizations, such as the International Organization for Migrations (Nancy Elizabeth Moreno Segura), Spanish Program for Cooperation (Sandra Patricia Mojica Enciso), German Program for Cooperation (Ilsa Carlota Alméciga), and Fundación Plan (Luz Yanira Garzón). From these positions, these women have been able to introduce the issue of women’s victimization in war as an issue for the cities’ agendas and as one that is relevant not only at the national level. Available information about transitional bureaucracies at the national level, in comparison, reveals that the Center for Historic Memory has explicitly consulted the School on Gender Studies at Universidad Nacional de Colombia when hiring,77 while feminist organizations report sensitivity training for public officials in these organizations.78

Legal Mobilization around Women’s War Victimization On most issues, feminist organizations in Colombia have avoided the use of courts to obtain legal change, preferring to lobby before Congress or to intervene in the production of bureaucratic bylaws and planning documents.79 In the realm of women’s war victimization, however, they have invested a lot of resources in litigating and have obtained significant victories.80 For example, through litigation in the Constitutional Court, feminists managed to get orders for the creation of a special program to protect the lives of women who have been victims in the armed conflict,81 as well as for the creation of special programs for the reparation of women who have been victims of armed conflict.82 In litigation before the Inter-­A merican Court of Human Rights, feminists demanded the adoption of cautionary measures for the

454

Isabel Cristina Jaramillo Sierra

protection of members of Liga de Mujeres Desplazadas83 and Sisma Mujer.84 RPM, IMP, Humanas, and Sisma Mujer have also been very active in monitoring compliance with each of these decisions.85 Some feminist organizations, such as Humanas, have also been engaged in producing data and arguments to support the case of the attorney general’s office against paramilitary leaders regarding sexual violence against women.86

Direct Service Provision for Women Victims of Armed Conflict Finally, as part of their services to women victims of violence, many feminists NGOs have dedicated time and efforts to providing services, especially psychological and legal services, to women who have been victims of armed conflict. Although since 2011, with the introduction of Law 1448, most of these services are provided by state institutions such as the Office of the Ombudsman, the Attorney General’s Office, and the Solicitor General’s Office, some feminist NGOs continue to provide these services, particularly organizations located outside of Bogotá (for a summary of organizations visible for providing these services, their location, issues tackled, and type of services provided, see Table 1). For national NGOs, such as Casa de la Mujer, Sisma Mujer, and Humanas, the possibility of providing services for victims of violence depends on funding they receive from development agencies in the United States (the United States Agency for International Development), Canada (the International Research and Development Center), Norway, Sweden, and Switzerland. This is the case, to some extent, for local NGOs as well. However, because most of the services provided by local NGOs, such as Liga de Mujeres Desplazadas and Organización Femenina Popular, assume the form of self-­help, once the members are trained in service provision they become natural multipliers in their own communities.

Feminist Representation of the Transition Through all these actions and from these positions, feminist NGOs and most feminist scholars have become responsible for the way in which women appear in the Transition and for the way in which the Transition appears to women. I will argue that even if feminists remain divided as to what should be their role in transitional institutions, they have united in representing women as the worst victims of armed

Table 1.  NGOs providing services to women victims

Name of the organization

Location

Issue

Type of services

SISMAa

Bogotá

Violence against women at home and in the armed conflict

Lawyers explain institutional routes for women seeking reparations or redress for violence; psychologists provide emotional support

Humanasb

Santa Marta (for this project only)

Sexual violence in the armed conflict

Not specified

Colectivo Mujeres al Derecho Atlántico, Sexual, physical, and economic Lawyers give advice in particular cases and (ASOCOLEMAD)c Magdalena, Bolívar violence against women sometimes take cases to the courts Liga Mujeres Desplazadasd

Cartagena

Forced displacement and threats to life and property

Psychologists provide emotional support for women interested in taking cases to the courts

Organización Femenina Populare

Barrancabermeja

Life and property of women

Lawyers give advice in particular cases and in cases concerning women’s organizations

Corporación Casa Amazoníaf Mocoa

Life and women’s traditional sources of income in face of mining projects

Lawyers give advice in particular cases and in cases concerning women’s organizations

Asociación de Organizaciones de Mujeres de Buenaventura

Issues regarding ethnic identity and human rights in general

Lawyers give advice in particular cases and in cases concerning women’s organizations

Chocó

“Asesoría psicojurídica para mujeres,” Sisma Mujer, http://www.sismamujer.org/servicios/. See http://www.humanas.org.co (accessed April 13, 2015). c. http://www.colectivomujeresalderecho.org (accessed April 13, 2015). d. http://www.ligademujeres.org (accessed April 15, 2015). e. “OFP Organización Femenina Popular,” YouTube video, posted by “hjdoblea,” March 24, 2009, https://www.youtube.com/watch?v=GO5b1PLqjRg (accessed April 15, 2015); http://organizacionfemeninapopular.blogspot.com (accessed April 15, 2015). f. http://coca-corporacioncasaamazonia.blogspot.com.es/ (accessed April 15, 2015). a.

b.

456

Isabel Cristina Jaramillo Sierra

conflict and women victims of the armed conflict as the women most in need of women’s solidarity. By adopting this type of feminist universalism, they have failed to interrogate and have rather supported the liberal framing of Colombia’s situation: Colombia is a constitutional democracy in which the rights of all citizens are secured by the state, the pockets of exceptionalism are clearly distinguishable and marginal, the role of the state is to bring constitutional democracy to all of its territory, and it should achieve this through transitional justice. Indeed, by 2005, not all feminists believed that participation in the Transition needed to be framed by this apocalyptical view of women’s victimization in armed conflict. Initially, many argued that women were not the main victims of the armed conflict, given that there were no official records of sexual violence related to the armed conflict. Some even went on to argue that women were faring better than men in the context of internal displacement.87 This position has disappeared from feminist depictions of women in violent conflict. There were two turning points in the narrative of women’s suffering in the armed conflict: first, the report by UN Special Rapporteur on Violence against Women Radika Coomaraswamy on her mission to Colombia and, second, Constitutional Court Decision AU-­092 of 2008 regarding the creation of special programs that address the needs of women.88 Coomaraswamy visited Colombia in November 2001 by invitation from the government to address the issue of the situation of women in and after armed conflict. Although the report starts unassumingly by pointing out that “The role of violence against women as a part of the internal armed conflict in Colombia has been overshadowed by the numerous other problems facing the country,” it progressively emphasizes that the armed conflict made women’s situation worse and that women have been spoils of war, used and abused by contending parties without much agency.89 She concludes her report by stating that, contrary to “a popular misconception in regard to the role of gender-­ based violence in the conflict, . . . Violence against women is widespread and systematic. The Special Rapporteur is extremely concerned about the current level of impunity for violations of women’s rights, especially those that take place in, or are aggravated as a result of, the armed conflict in Colombia.”90



Finding and Losing Feminism in Transition

457

This report not only recognized the work that feminist NGOs, especially the MTMCA, had been doing to record and make visible violence against women in the armed conflict, but also influenced later reports that fleshed out with an authoritative voice the continuum hypothesis: the idea that women carry the harms of peacetime discrimination into every exceptional situation so that the harms of the normal are added up to the harms of the exceptional. Most cited among these is the report by Amnesty International on women in the Colombian armed conflict called Scarred Bodies, Hidden Crimes, published in 2004 in English and in 2005 in Spanish. The report explains in the following manner the continuum hypothesis: Women and girls in Colombia not only suffer the danger, hardship and pain inherent in any armed conflict, but also gender discrimination which is prevalent in many societies around the world, including Colombia. It is this continuum—­f rom domestic—­to conflict related sexual violence that is particularly corrosive. Everyday gender-­based discrimination and sexual abuse, combined with other forms of conflict related-­discrimination, have placed women at particular risk.91

Constitutional Court decision AU-­092 of 2008 followed up on these intuitions, extending the continuum hypothesis from sexual violence to patriarchy in general. AU-­092 was adopted in the context of the Constitutional Court’s decision to supervise the government’s compliance with its legal and constitutional obligations toward the internally displaced population, as identified by the Court in Sentencia T-­025 de 2004.92 The Court found that sexual violence in the Colombian armed conflict was not only serious but also extensive, citing more than nine categories of uses of sexual violence against women in the armed conflict. More important, however, the Court stated that the facts of the case demonstrated that women are disproportionally, meaning more than men, affected by the internal armed conflict in Colombia. It listed ten gender-­specific risks: (i) the risk of sexual violence, exploitation, and abuse in armed conflict; (ii) the risk of being forced to perform domestic chores and roles considered feminine in a patriarchal society, on the part of illegal groups; (iii) the risk of seeing their children being forcefully recruited

458

Isabel Cristina Jaramillo Sierra

by armed actors acting illegally, or any other type of threat to their safety, which is worse when women are heads of their families; (iv) the risks derived from having contact with or being related to members of any of the illegal armed groups operating in the country or with members of the Colombian military . . . ; (v) the risks derived from being part of social, community-­based, or political associations of women or because of their leadership in the promotion of human rights in the zones affected by the armed conflict; (vi) the risk of being persecuted and killed as a form of controlling public and private behavior in territories dominated by illegally armed groups; (vii) the risk of losing sustenance because of the killing or disappearance of the family’s provider or because of the disintegration of families and their social and material support networks; (viii) the risk of losing their lands and patrimony to illegal armed actors because of their historical position with regards to property, in particular to land; (ix) the risks derived from the condition of discrimination and vulnerability of Indigenous and Afro descendant women; (x) the risk derived from losing the economic provider in the process of being internally displaced.93

The Court ordered the creation of thirteen special programs to take care of the needs of internally displaced women within the subsequent three months and commanded the participation of feminist organizations in the creation and implementation of the programs.94 The feminist claim that women are the most vulnerable population in war, and war is the greatest harm that women may suffer, which feminist NGOs, and particularly those that have been part of the MTMCA, argued to the special rapporteur and then to the Constitutional Court, has thus become dominant through the authority of both the special rapporteur and the Constitutional Court. The continuum hypothesis is now repeated in every report or handbook to emphasize the importance of adopting a gender perspective and is used to explain why any deterioration in the armed conflict is a feminist issue. The triumph of this characterization of women’s oppression has meant also the triumph of the liberal framing of the Colombian situation among feminist NGOs: the continuum hypothesis as much as the liberal framing accepts the difference between war and peace and concedes that oppression becomes worse as a result of war. Consequently, feminists have come to embrace the notion that women’s



Finding and Losing Feminism in Transition

459

oppression can be expressed as a set of violations of human rights and can be redressed using criminal proceedings against members of illegal groups. There are two consequences involved in such representation: (1) feminists concede that the Colombian state is their main ally and (2) feminists accept that pacification will involve a significant reduction of women’s oppression. These consequences become costs for feminists when they organize around issues of peacetime, such as domestic violence, political representation, or abortion; and they find that their distrust of the state and their fights against criminalization have come to be in contradiction with their claims regarding war. In the following section, I flesh out how this contradiction works and some of the particular costs it engenders.

The Costs of Feminist Universalism for Women in Colombia The type of feminist universalism that has become dominant in the discourse around the situation of women in armed conflict in Colombia not only exposes deep contradictions in feminist thought and argumentation but also risks creating a dependency trap for women while men prosper as agents of economic development in the postconflict society imagined by the Transition. I argue here that the continuum hypothesis forces feminists to accept that anything and everything that happens to women is worse, because it happened to women; that women are always ill-­t reated by bureaucracies and judges; and that solving problems related to poverty and government will also solve problems of patriarchy. These exaggerations and distortions cannot be justified by the results that feminists have achieved so far: rather than witnessing the moderation of patriarchy, we are finding women opting to replace their lousy husbands for a lousy state.

Comparing Men’s and Women’s Suffering The continuum hypothesis as articulated by feminists and authorities seems pretty straightforward: if women fare worse than men in times of peace, then they must fare worse than men in times of war. The notion underlying this arithmetic is rarely interrogated: only if we assume that all suffering is commensurable, and only if we accept that

460

Isabel Cristina Jaramillo Sierra

to understand suffering all we need is to add up amounts, can we accept that if the premise in this syllogism is true, then the consequence also is true. Assuming that all suffering is commensurable is problematic: can we really add up all rapes and insults and claim that they are the same as death and torture? It is even more problematic if one is invested in the difference between war and peace: if the difference points to excesses in war, then we have to disregard or minimize the harms in peace in order to get the accounting right. The numbers of the Colombian armed conflict do not easily lend themselves to the type of comparisons suggested by the hypothesis. The most recent data provided by the GMH is not discriminated by sex, and the databases on which they built the totals presented do not have sex as a variable either.95 Data reported by the National Registry of Information on victimization, in contrast, show fairly similar rates of victimization of men and women, with significant differences only for kidnapping, recruitment of underage men and women, and losses to limbs due to mines, cases in which men allege to have been more affected; and sex-­related crimes, cases in which women claim to have been more affected (see Table 2).96 Nevertheless, these data do not separate instances in which individuals claim to have been direct victims from those instances in which individuals claim to be indirect victims for reasons of marital status or kinship. That is, the data do not show how many men and women were killed, but how many men and women claim to have been victims of murder in relation to the armed conflict. Instances showing significant differences thus might be expressing differences between direct and indirect victimization, with men expressing more direct victimization in cases of kidnapping, torture, recruitment, and mine explosions; and women expressing more victimization in cases of sex-­related crimes or indirect victimization in cases of losses because of the death of a male provider. These conclusions are also supported by general reports on crime by the Colombian forensic authority and independent reports on crime. According to the summary report presented by the forensic authority in 2014, more than 90 percent of victims of homicide are men, more than 70 percent of the number of persons forcibly disappeared are men, and more than 86 percent of persons requesting examination for sex-­related crimes are women.97 The consultancy firm Cifras & Conceptos also showed men as 77 percent of the total victims



Finding and Losing Feminism in Transition

461

Table 2. Victimization information from the Unit for the Attention and Reparation of Victims

Facts Homicide Forced loss of land Loss of movable and immovable goods Forced disappearance of persons Kidnapping Torture Sex-­related crimes Recruitment of children and adolescents Terrorist acts Threats Mine explosions Forced displacement

Women

Men

LGBTI

No data on gender

436,493 2,350

498,537 2,313

89

13,900 3,636

39,692

41,613

18

14,598

72,312

82,899

13

2,356

8,509 3,597 9,700

31,079 5,819 854

10 11 46

587 176 221

2,437

5,111

2

182

35,195 130,402 1,158 3,248,081

46,679 120,759 12,014 3,083,986

25 238

3,215 2,352 97 27,031

1,204

Source: Red Nacional de Información (National Information Network), translated by the author; last visited January 31, 2015. The information above reflects data from 2015. For updated information, showing increases in the number of victims but similar patterns, see https://www.unidadvictimas.gov.co/es/registro-unico-de-victimas-ruv/37394.

of kidnapping.98 Of course, it could be the case that armed conflict changed radically the victimization of men and women, but the case studies of the Center for Historic Memory do not support this hypothesis either.99 While feminists would insist that women have suffered “more” than men as a consequence of armed conflict, because they have been direct and indirect victims of conflict almost as much as men or a little more, I find it hard to accept that the fact that men are more often killed, tortured, and forcibly disappeared in armed conflict but are not here to claim damages is irrelevant in the accounting. I think it severely distorts our understanding of pain and damage to think that those who are not here are not “victims” because they did not survive to witness

462

Isabel Cristina Jaramillo Sierra

and endure the loss. The opposite of the continuum then appears as a better explanation: men suffer more in a situation of armed conflict, when understood using the liberal framing, than women. Indeed, as explained above, the continuum hypothesis has overcome the centrality of sexual violence by using data that show that out of the reported victims of conflict, women are a little more than half. This is achieved by adding up all damages derived from crimes committed in spaces of conflict and adding up direct and indirect victimization. The problem with this argument, from my point of view, is not that it equates the damage of sexual violence to the damage of being killed, but rather that it equates being killed to being the wife of someone who was killed. This is the operation that I interrogate here as a rationale to sustain the continuum hypothesis.

Comparing Men and Women as “Victims” The continuum hypothesis could also be read as meaning that even if men suffer more in armed conflict, women have more “risks,” that is, it is harder for them to “recover” from the harm caused by armed conflict: they experience more difficulties in reaching state authorities, they receive less money in compensation once they reach state authorities, they have a harder time finding jobs and supporting their families, and they have more dependents than victims who are men. This conclusion is counterintuitive in two ways. First, in the case of state authorities doing research on crime or demanding evidence of criminal activity to record an individual as victim, which is the case many times, one could actually foresee that more women than men approached them, and also that women felt safer than men in doing so given the historic relation of men to crime and policing authorities.100 Second, there are no reasons to suppose that it is harder for women than it is for men to find jobs once they are displaced; rural women have historically found opportunities for work as domestic servants while rural men have not found an easy adaptation of their skills in the urban environment.101 Most research on the costs of war for women in Colombia relate to the impact of forced displacement, as this is by far the most important form of victimization. Most of this research providing data on household responsibilities and poverty assumes that women fare worse than



Finding and Losing Feminism in Transition

463

men. The fact that more than 30 percent of displaced households have single or widowed women as heads of household is generally cited as proof of women’s vulnerability after war.102 More complex accounts of the cost of war, however, show that displaced men and women have different preexisting vulnerabilities and are also differently affected by war, but by no means are men better off in every aspect measured. According to a 2009 report by the Consultoría para los Derechos Humanos y el Desplazamiento, an NGO created to monitor and report on the violation of rights of the displaced population, displaced women have more years of education than men and lower illiteracy rates, and women report having received more nutritional aids, more training courses, and more entrepreneurial courses than men.103 Women also report smaller losses (though from a lower baseline) in labor market participation than men: while men’s employment rate falls from 75 percent to 60 percent, women’s falls from 40 percent to 35 percent.104 Then again, women indeed appear to have less income than men (only 5 percent of women working receive the minimum wage, as opposed to 15 percent of men working), report doing significantly more household chores than men (40 percent of women report doing household work, whereas only 31 percent of men report doing any household work), and express deeper concerns over their health than men (although men and women have similar health insurance coverage and men actually spend more days in hospitals due to health issues).105 The most dramatic numbers are those related to the income of women who are heads of households: 99 percent earn income that is lower than that established for the poverty line; 86 percent earn income that is lower than that established for indigence. Other studies show that contributions to household income by women increase after displacement but also that these women suffer more domestic violence.106

Women Victims as the Poorest of the Poor Finally, the continuum hypothesis could be read as meaning that even if women are not worse off than men as regards to war, during conflict and after conflict, women victims of armed conflict are worse off than all other women, and therefore overcoming conflict or normalizing the exceptions could make women’s situation as women better. Existing

464

Isabel Cristina Jaramillo Sierra

Table 3.  Basic welfare indicators for urban, rural, and displaced women

Indicator Years of education received Illiteracy rates (percentage of the total population) Affiliation to health system (percentage of the total population) Level of occupation (percentage of the total population) Number of households with female heads (percentage of the total population) Domestic violence–­physical attacks (percentage of the total population) Sexual violence (percentage of the total population) Number of children (average number of children per woman)

Nondisplaced women in urban areas

Nondisplaced women in rural areas

Displaced women

9.1

5.4

4.5

2.9

13.9

14.1

90.5

90.5

78.0

48.7

32.2

35.0

33.1

21.7

30.0

39.6

37.3

44.3

6.2

5.9

8.2

2.1

3.4

4.8

Sources: Author’s elaboration using the following sources: Profamilia, ENDS 2005, http:// profamilia.org.co/wp-content/uploads/2015/05/ENDS%202005.pdf (last visited August 30, 2018) ; Profamilia, ENDSdesplazados 2005, http://bdigital.unal.edu.co/47771/1/9588164265​ .pdf (last visited August 30, 2018) ; DANE, Informe Genero GEIH, 2010, statistics segregated by gender are available at https://www.dane.gov.co/index.php/estadisticas-por-tema /estadisticas-de-genero#estad%C3%ADsticas-por-tema (last visited August 2018).

data on basic welfare indicators, however, show that displaced women resemble rural women with regard to indicators such as years of education, illiteracy, and number of children, while they resemble women in urban areas with regard to domestic violence and sexual violence (see Table 3). Interestingly, an increase in violence is reported by all



Finding and Losing Feminism in Transition

465

internal migrants regardless of the event (for example, violence, poverty, and natural disasters) that triggered the migration.107 This way of asking the question and finding answers about the fate of women in and after armed conflict raises two important questions: (1) Are the most vulnerable women being displaced, or is displacement predominantly affecting women? (2) Are displaced women worse off because they are women or because they are displaced? If we conclude that it is displacement that is making the difference, we could agree that the continuum hypothesis explains how women victims of armed conflict became the poorest of the poor, the ones most in need of assistance. However, it would still not be clear how feminists can help make the lives of displaced women better or why feminists should focus on making the lives of displaced women better. That is, it seems that feminist knowledge about patriarchy could not explain other types of victimization, this is, class, sexual orientation, race, ethnicity, and so on, and, consequently, could not help women who are affected mainly because of their situation along other axes of power. In particular, it would not be clear how whatever is learned about armed conflict can be used to change the lives of all other women. The studies of Ana María Ibañez and her colleagues have shown both that poverty is not the main reason or explanation for displacement and that the situation of the displaced population is better explained as a result of the losses endured before displacement and for reasons related to the displacement. Indeed, Engel and Ibañez reveal that displacement is affected by the perception of security an individual or group might have and the information they have about the conditions they will face after displacement, not only by the magnitude of the loss they would face.108 Steele has also shown that the type of violence causing the displacement affects the displacement strategy of individuals and groups, and this has an impact on their situation after displacement.109 Ibañez and Moya, for their part, explain that the risk that the displaced population faces of becoming chronically poor is not only related to their initial conditions or the conditions of their places of arrival. Rather, it is crucial to take into consideration the effect of the loss of a family member on the productivity of the household, in particular if the person was one of the main providers; the effects of trauma and stress on all other members of the household; the increased number of persons with disabilities; and individuals’

466

Isabel Cristina Jaramillo Sierra

lack of skills when looking for jobs in the formal labor market in the municipalities to which they migrate.110 Unless we are willing to hold that women are essentially different from men in their traumatic processes, or we believe that displacement is about a male fight for the modernization of society in which women should intervene to contribute the female point of view—­that is, unless we are interested in a deep-­rooted cultural feminism that indeed finds patriarchy to be a plausible explanation of every social phenomenon—­it is difficult to find the specific contribution that feminists can make in overcoming the exceptional situation of the armed conflict. Of course, this does not mean that we should not care for women victims; rather, I am trying to argue that as a theory and political position, feminism has little to contribute to the Transition when it is understood using the liberal framing. In this sense, it is also clear to me that feminism could contribute a lot if the framing adopted is the structural framing. In this framing, the very notion of victim and suffering would be submitted to critique and reconstruction, and therefore the fight would be different in any case from the one we are fighting now. I return to this in the conclusion.

Women Trapped in the Humanitarian Aid System Feminist mobilization around the victimization of women in armed conflict has strongly relied on the continuum hypothesis both to claim the need to study and report the harms endured by women in the armed conflict and to demand special measures for women in the system of provision of humanitarian aid. This work, however, has failed to help in advancing the transformation of what is considered normal in this framing and has not proved to be better than the measures adopted by the normal system at increasing the welfare of women and their children. Moreover, because the normal has changed so little, displaced women have even greater risks than men of being trapped in the humanitarian aid system. As I have explained before, feminist mobilization has accepted the liberal idea that it is possible and reasonable to make a difference between the normal and the exceptional but has held that both are tied together by the continuum hypothesis. Apparently, it was expected that women in exceptional situations could have at least the same welfare conditions of women in normal situations without having to change



Finding and Losing Feminism in Transition

467

the normal significantly. Intervention in the normal situation of women was therefore delayed to an unstated future moment. Indeed, the work that feminists have deployed in identifying, framing, and measuring damages caused to women in armed conflict has had little impact so far in the effective reparations that women have received, in increasing their security from harm, and in sentencing, even if gains in access to humanitarian aid are quite tangible. In part, this is due to a generalized lag in answering the plight of victims, both men and women. But another part is related to the marginal relevance of the armed conflict to women’s overall situation. The report by the UARIV for 2011–­14 is dismal (see Table 4) not only for small achievements but also for the meagerness of the goals proposed in light of the size of the victim population, which in 2014 had already surpassed six million Colombians. Sexual violence perpetrated against women has the worst record in terms of the number of victims who have received any type of reparations. Humanitarian aid has the best record—­t hat is, victim claims made to humanitarian aid are more likely to be fulfilled and more quickly resolved, though detailed data show that the number of petitions that ended up in effective payments were only a little more than half.111 With regards to humanitarian aid, it is crucial to note that the amount of emergency aid families receive is about $300 and is paid only once to each family. However, households with only one provider are favored by a presumption of poverty that leads to an automatic renewal of the aid for one year. Other households need to go through a thorough evaluation to determine whether they are in need of humanitarian aid. Other households are in such desperate situations that they clog the judicial system with requests for payment.112 Humanitarian aid, according to existing planning instruments, should soon be followed by strategies to generate income that would allow families to become independent.113 However, most recent data show that victims are unable to make the transition. Projects for income generation are geared toward traditionally male areas, and humanitarian aid is not proving to be enough to overcome indigence. The sticky floor of humanitarian aid, though, is becoming stickier for women who are favored by automatic renewals and do not understand themselves as labor market participants but rather as homemakers: the lousy husband is being replaced by the lousy state.

Table 4. Reparations reported by the Unit for Victims’ Assistance and Reparation for 2011–­14

Goal 2011–­15

Implementation results

Goal 2014

Implementation results (Sept. 30, 2014)

Victims who received reparations not related to displacement

385,846

340,910

100,230

32,000

Victims who received reparations for displacement

57,000

31,237

48,008

40,868

Women who received reparations for sexual violence

19,441

1,119

7,358

921

Children who have received reparations

15,787

24,284

5,256

15,166

Humanitarian aid

Emergency aid for displaced population

100%

100%

100%

96.20%

Others

Collective reparations

140

1

140

1

Measure

Indicator

Individual reparations

Source: UARIV, Informe de Rendición de Cuentas 2014, 13. The report used to be available at http://www.unidadvictimas.gov.co/es/planeacion-y -seguimiento/rendicion-de-cuentas/158; as of August 30, 2018, it is no longer available to the general public.



Finding and Losing Feminism in Transition

469

Concluding Remarks This chapter uses the example of the Transition to reflect upon feminist mobilization within frameworks of transition at a time when transitions are understood to involve some development strategy beyond the guarantee of human rights. I have argued that Colombian feminists, both NGOs and scholars, have struggled to influence transitional institutions and organizations, as well as transitional talk. In particular, they have positioned the idea that armed conflict in Colombia has had a disproportional impact on women, making gender identity one of the markers for victimization and for reparation. They have achieved this by postulating the continuum hypothesis, according to which if women fare worse than men in normal situations, they should fare even worse in exceptional situations. Existing data, nevertheless, show that armed conflict hits men harder, that women victims are better off than men victims as victims, and that the situation of displaced women vis-­à-­v is that of nondisplaced women can be explained not by patriarchy but rather by the characteristics of the armed conflict. The continuum hypothesis, then, not only diverts work from the normal into the exceptional but also causes displaced women to end up trapped in the humanitarian aid welfare system. Of course, this does not mean that we should not care for women involved in situations of occupation, attack, or threats or that these women do not have a place in a proper feminist agenda. The goal of this critique is neither to demand more elitism in feminism nor to discipline feminists into some overarching truth. Rather, it seeks to support the structural framing of the Colombian situation and the role of feminism within that structural framing by revealing the failings of the liberal framing even in a very polished version such as the one developed by Colombian feminists in their struggle to resist the view that sexual violence is the only harm endured by women in armed conflict and that transitional redistribution should benefit only men.

Notes 1. See Ruti G. Teitel, “Transitional Justice Genealogy,” Harvard Human Rights Journal 16 (2003): 69–­94; Paige Arthur, “How ‘Transitions’ Reshaped Human Rights: A Conceptual History of Transitional Justice,” Human Rights Quarterly 31 (2009): 321–­67. See also Rosemary Nagy, “Transitional Justice as Global Project: Critical

470

Isabel Cristina Jaramillo Sierra

Reflections” Third World Quarterly 29, no. 2 (2008): 275–­89; David Dyzenhaus, “Transitional Justice,” ICON 1, no. 1 (2003): 163–­75. 2. Christine Bell and Catherine O’Rourke, “Does Feminism Need a Theory of Transitional Justice: An Introductory Essay,” International Journal on Transitional Justice 1 (2007): 23–­4 4. 3. Karen Engle, “Feminism and Its (Dis)contents: Criminalizing Wartime Rape in Bosnia and Herzegovina,” American Journal of International Law 99, no. 4 (2005): 778–­816; Janet Halley, “Rape at Rome: Feminist Interventions in the Criminalization of Sex-­Related Violence in Positive International Law,” Michigan Journal of International Law 30, no. 1 (2009): 1–­123. 4. I will capitalize and italicize the word “transition” when referring to the particular historical event of peace negotiations and reparations that started in Colombia with the enactment of Law 975 of 2005 and continue to this day. Although I mention how the conflict among the Colombian government and FARC is relevant to the Transition, here I do not discuss the way in which feminists participated in peace talks with FARC, nor the mixed results of such involvement. 5. I use the models of transition developed by Nicholas Guilhot, “The Transition to the Human World of Democracy: Notes for a Conceptual History of Transition, from Early Marxism to 1989,” European Journal of Social Theory 5, no. 2 (2002): 219–­43. 6. Halley uses the expression “feminist universalism” to refer to the position according to which “women are not a particular group of humanity but a universe of their own. In the new feminist universalist worldview, humanitarian law and international criminal law norms relating to armed conflict could be about women.” Halley, “Rape at Rome,” 6. Here, although there is some affinity to this notion, emphasis is on the explanatory power of feminism as a theory about how power is exercised. 7. See Robert H. Dix, “Consociational Democracy: The Case of Colombia,” Comparative Politics 12, no. 2 (1980); Robert Dahl, Democracy and Its Critics (New Haven, Conn.: Yale University Press, 1989); Malcom Deas, “La Tradición Electoral,” in Fortalezas de Colombia, ed. Fernando Cepeda Ulloa (Bogotá: Ariel/Banco Interamericano de Desarrollo, 2004). There is general agreement in Colombian society that General Gustavo Rojas Pinilla was not guilty of any crimes against the civilian population and rather is still remembered as one of the greatest leaders in Colombian history. See Torcuato S. Di Tella, “‘Partidos del Pueblo’ en América Latina: Revisión Teórica y Reseña de Tendencias Recientes,” Desarrollo Económico 22, no. 88 (January–­ March 1983): 451–­83. 8. On the production of knowledge about conflict in modern Colombia, see Jefferson Jaramillo Marín, “Expertos y comisiones de estudio sobre la violencia en Colombia,” in Estudios Políticos 39 (July–­December 2011): 231–­58. See also Isabel Jaramillo Sierra, “Las Formas Institucionales para la Verdad Estructural: A Propósito de la Creación de Una (Otra) Comisión de la Verdad para Colombia,” in Perspectivas Jurídicas para la Paz, ed. Helena Alviar and Isabel Jaramillo Sierra (Bogotá : Universidad de los Andes, 2016), 427–­61. 9. Sentencia Corte Constitutional C-­370/2006. 10. Rodrigo Uprimny, María Paula Saffón, Catalina Botero, and Esteban Restrepo, Justicia Transicional sin Transición (Bogotá: Dejusticia, 2006).



Finding and Losing Feminism in Transition

471

11. See Law 1448 of 2011 “por medio de la cual se dictan medidas de atención, asistencia y reparación integral a las víctimas del conflicto armado y se dictan otras disposiciones,” also known as Ley de Víctimas or Victims Statute, for a complete set of institutional reforms to deal with the Transition. 12. See Edgar de Jesús Velásquez Rivera, “Historia del Paramilitarismo en Colombia,” História, Sao Paulo 27, no. 1 (2007): 134–­53; Edwin Cruz Rodríguez, “Estudios sobre el paramilitarismo en Colombia,” Análisis Político 60, no. 20 (2007): 117–­34; and, in general, Centro de Memoria Histórica, ¡Basta Ya! Colombia: Memorias de Guerra y Dignidad (Bogotá: Imprenta Nacional, 2014). 13. Chapter 2 of ¡Basta Ya! includes a detailed account of the development of paramilitary groups. 14. Case Caballero Delgado y Santana, December 8, 1995, series C, no. 17; Case Las Palmeras, December 6, 2001, series C., no. 90; Case 19 Merchants, July 5, 2004, series C, no. 109; Case Gutiérrez Soler, September 12, 2005, series C, no. 132; Case Massacre of Mapiripan, September 2005, series C, no. 134; Case Pueblo Bello Massacre, January 31, 2006, series C, no. 140; Case Ituango Massacres, July 2006, series C, no. 148; Case La Rochela Massacre, May 11, 2007, series C, no. 163; Case Ezcué Zapata, July 4, 2007, series C, no. 165; Case Valle Jaramillo and Others, November 27, 2008, series C, no. 192. 15. ¡Basta Ya!, 32–­62. 16. Ibid., 131. 17. Ibid., 134. 18. On the evolution of the case concerning the elimination of Unión Patriótica members before the Inter-­A merican Court of Human Rights, see Ivan Cepeda Castro, “Genocidio Político: El caso de la Unión Patriótica en Colombia,” Historias de América 1, no. 2 (2006): 101–­12. The Inter-­A merican Court of Human Rights found for the plaintiff in the case Cepeda Vargas v. Colombia and established the responsibility of the Colombian state in the elimination of the political party by selective killing of its members. See Case Cepeda Vargas v. Colombia, May 26, 2010, series C, no. 213. 19. ¡Basta Ya!, 33. 20. Centro de Memoria Histórica, Guerrilla y población civil: Trayectoria de las FARC 1949–­2013 (Bogotá: Centro de Memoria Histórica, 2013), 55. 21. Comisión de Estudios sobre la Violencia, Colombia: Violencia y Democracia (Medellin: Bogotá Universidad Nacional de Colombia, 1987). 22. See, e.g., Iván Orozco, Combatientes, Rebeldes y Terroristas: Guerra y Derecho en Colombia (Bogotá: Editorial Temis-­IEPRI, 1992); Orozco, Sobre los Límites de la Conciencia humanitaria: Dilemas de la Paz y la Justicia en América Latina (Bogotá: Temis, 2005); Orozco, Justicia Transicional en Tiempos del Deber de Memoria (Bogotá: Temis, 2009). 23. See, e.g., Alejandro Castillejo, Los Archivos del Dolor: Ensayos sobre la Violencia y el Recuerdo en la Sudáfrica Contemporánea (Bogotá: Universidad de los Andes, 2009). 24. Lina Céspedes-­Báez, Nina Chaparro González, and Soraya Estefan Vargas, “Metodologías en el estudio de la violencia sexual en el marco del conflicto armado colombiano,” Colombia Internacional 80 (2014): 19–­56.

472

Isabel Cristina Jaramillo Sierra

25. As mentioned before, for the difference between a teleological and a critical view on transition, see Nicolas Guilhot, “The Transition to the Human World of Democracy,” European Journal of Social Theory 5, no. 2 (May 2002): 219–­42, esp. 230. 26. Ibid., 230. 27. See, e.g., Ana María Ibañez and Andrés Moya, La Población Desplazada en Colombia: Examen de sus condiciones socioeconómicas y análisis de las políticas actuales (Bogotá: Departamento de Planeación Nacional, 2007).  28. For an analysis of Uribe Vélez’s denial of the existence of an internal armed conflict in Colombia, see Juan Gonzalo Betancur, “Conflicto Armado Interno vs. Amenaza Terrorista: La Disputa por un Concepto,” Reflexión Politica 12, no. 24 (2010): 68–­77. 29. Mauricio Archila has pointed out that women, compared with men, have not mobilized much in Colombia and particularly have not mobilized around gender issues. See Mauricio Archila, Idas y venidas, vueltas y revueltas: Protestas sociales en Colombia, 1958–­1990 (Bogotá: Cinep/Icanh, 2003). More recently, he has written recognizing the important impact of women’s mobilization on legal change but, nonetheless, has emphasized the small number of women’s protests recorded in news­ papers and specialized databases. See Archila, “Aspectos Sociales y Políticos de las Mujeres en Colombia Siglos XX y XXI” (unpublished manuscript), http://www .colombianistas.org/Portals/0/Congresos/Documentos/CongresoXVIII/Archila _Mauricio.pdf. 30. See, e.g., Olga Amparo Sánchez, “El movimiento social de mujeres: La construcción de nuevos sujetos sociales,” in Mujeres en la Historia de Colombia, ed. Magdala Velásquez (Bogotá: Norma, 1995), 382; Sonia Álvarez, “Advocating Feminism: The Latin American Feminist NGO ‘Boom,’” International Feminist Journal of Politics 2, no. 1 (1999): 181–­209. 31. For a full articulation of this argument, see Latin American and Caribbean Women’s Collective, Slaves of Slaves, trans. Marco Pallis (London: ZED Books, 1980). 32. I have tried to show some of the risks of mobilizing only poor women in Isabel C. Jaramillo Sierra, “Reforma Legal, Feminismo y Patriarcado en Colombia: El Caso de la Ley de Cuotas para Mujeres en Cargos de Alto Nivel de la Rama Ejecutiva,” in Más Allá del Derecho, Justicia y Género en América Latina, ed. Luisa Cabal and Cristina Motta (Bogotá: Siglo del Hombre, 2006), 59–­144. 33. According to some accounts, RPM has around 280 affiliates. See, e.g., “Colombia: Ruta pacífica de las mujeres,” Coordinadora Popular Colombiana En Paris, http://escolombiaparis.e-monsite.com/pages/iniciativas-de-paz/colombia-ruta​ -pacifica-de-las-mujeres.html (accessed March 13, 2015); Líneas Estratégicas, http://www.pas.org.co/#!suippcol (accessed March 13, 2015). According to other sites, it has three hundred. See, e.g., “Ruta Pacifica,” Construyendo alternativas de organización educación y cultura popular, http://www.corporacionsimonbolivar​ .org/article/ruta-pacifica/ (accessed March 13, 2015). However, this number could not be verified as their own web page does not provide a number: Ruta Pacifica De Las Mujeres, http://www.rutapacifica.org.co/ (accessed March 13, 2015). IMP, for its part, includes the following organizations: Asamblea Permanente de la Sociedad Civil por la Paz; Asociación Colombiana de Familiares de Miembros de la Fuerza



Finding and Losing Feminism in Transition

473

Pública, Retenidos y Liberados por Grupos Guerrilleros; Asociación de Mujeres de Quibdó; Asociación de Mujeres por la Paz y la Defensa de los Derechos de la Mujer Colombiana; Asociación Nacional de Mujeres Campesinas, Negras e Indígenas de Colombia; Asociación Nacional de Usuarios Campesinos—­Unidad y Reconstrucción; Consejo de Apartadó; Corporación Colombiana de Teatro; Departamento de la Mujer; Escuela de Estudios de Género; Movimiento Nacional de Mujeres Autoras y Actoras de Paz; Organización Indígena de Antioquia; Organización Indígena de Colombia; Proceso de Comunidades Negras en Colombia; Red de Mujeres del Caribe; Red de Mujeres Jóvenes Feministas por la Paz; and Sindicato Nacional de Trabajadoras al Cuidado de la Infancia en Hogares de Bienestar. 34. Olga Amparo Sánchez Gómez, Nuevas formas de resistencia civil de lo privado a lo público: Movilizaciones de la Ruta Pacífica 1996–­2003 (Bogotá: Cooperacio SUIPPCOL, 2006), 17. 35. Linsu Fonseca, Una Colombia que nos queda (Bucaramanga: Fundación Mujer y Futuro y AECID, 2011), 96–­100. 36. María Emma Wills Obregón, Inclusión sin Representación: La Irrupción de la Mujer en la Política Colombiana (Bogotá: Grupo Editorial Norma, 2007), 257. Public opinion regards Senator Córdoba as a national leader for peace even after she was disbarred from politics for eighteen years by the solicitor general Alejandro Ordóñez in 2010 for “supporting the guerrillas.” The Constitutional Court determined that the solicitor general did not violate the senator’s right to due process when it stripped her of her political rights. See Sentencia Corte Constitucional SU-­712/2013, majority opinion by Jorge Iván Palacio Palacio, dissenting opinion by María Victoria Calle Correa and Luis Ernesto Vargas Silva. The solicitor general’s decision was annulled in 2016 by the State Council on grounds of wrongs incurred during the gathering of evidence. Decision of August 9, 2016, State Council. 37. Wills Obregón, Inclusión sin Representación, 258. 38. Norma Villareal, “Mujeres y madres en la ruta por la paz,” in La crisis sociopolítica colombiana: Un análisis no coyuntural de la coyuntura, ed. Luz Gabriela Arango (Bogotá: Fundación Social, CES-­Universidad Nacional de Colombia, 1997), 384–­419, at 400–­19. 39. María Eugenia Ibarra Melo, “Mujeres, verdad, justicia y reparación en Colombia,” Universitas Humanistica 72, no. 72 (2011): 259–­62. See also Cumbre Nacional de Mujeres y Paz, Gestando la Paz, Haciendo Memoria (Bogotá: ONU MUJERES, 2014). 40. See, in general, Asamblea Permanente de la Sociedad Civil por la Paz, Mujeres por la Paz en Colombia (Bogotá: Diakonía, 2011). 41. Ibid. 42. Ibid., 15. 43. See “Description of IMP,” Gloobal, http://www.gloobal.net/iepala/gloobal /fichas/ficha.php?id=9980&entidad=Agentes&html=1. 44. Ibarra Melo, Mujeres, verdad, justicia y reparación, 260. 45. Fonseca, Una Colombia, 9. 46. Ibid., 103. 47. Ibarra Melo, Mujeres, verdad, justicia y reparación. 48. Fonseca, Una Colombia, 103–­4.

474

Isabel Cristina Jaramillo Sierra

49. See Comisión de Estudios sobre la Violencia, Colombia: Violencia y Democracia. 50. Centro Nacional de Memoria Histórica, Recordar y narrar el conflicto: Herramientas para construir memoria histórica (Bogotá: Imprenta Nacional de Colombia, 2009). 51. Comisión Nacional para la Reparación y la Reconciliación, El Placer: Mujeres, Coca y guerra en el Bajo Putumayo (Bogotá: Ediciones Semana y Taurus, 2012). 52. Centro Nacional de Memoria Histórica, La Masacre de Bahía Portete (Bogotá: Ediciones Semana y Taurus, 2010); Centro Nacional de Memoria Histórica, Mujeres y guerra: Víctimas y resistentes en el Caribe Colombiano (Bogotá: Ediciones Semana y Taurus, 2011); Centro Nacional de Memoria Histórica, Mujeres que Hacen Historia: Tierra, Cuerpo y Política en el Caribe Colombiano (Bogotá: Ediciones Semana y Taurus, 2011). 53. On María Cristina Hurtado, see María Cristina Hurtado, “Nuestras niñas crecen creyendo que a las mujeres se les pega,” Semana, October 19, 2013, http://www​ .semana.com/nacion/articulo/entrevista-maria-cristina-hurtado-violencia-mujeres /361574–3; Hurtado, “Asumieron nuevas delegadas para los derechos de las mujeres y los niños,” Defensoria del Pueblo, October 4, 2014. On Adriana Serrano, see the webpage of Universidad del Rosario, where she works as full-­time professor in the Political Science Department, http://www.urosario.edu.co/. On Alma Viviana Pérez, see the webpage on inclusive security, where she is included as minister plenipotentiary to the Colombian mission to the United Nations, https://www.inclusivese​ curity.org/. 54. Comisión Nacional para la Reparación y la Reconciliación, La reintegración: Logros en medio del desarme y dificultades no resueltas (Bogotá: Imprenta Nacional de Colombia, 2010), 221–­39. 55. Ibid., 226. 56. Ibid., 232–­39. 57. Comisión Nacional de Reparación y Reconciliación, Manual de Documentación de casos y de orientación a mujeres víctimas de la Violencia en Género en el Marco del Conflicto Armado (Bogotá: Imprenta Nacional, 2011), 12. 58. Ibid., 33–­49. For example, the survey that the UARIV is currently using to collect information on sexual violence asks: Have you been subjected to any of the conducts described as crimes against sexual freedom in the Penal Code? The format suggested by the gender experts in CNRR asks: Have you been forced into pregnancy? Have you been forced to abort? Did you lose any employment opportunities? Ibid., 44. 59. Ibid., 70–­96. 60. Collective reparations are oriented to address damages caused to communal life, that is, losses regarding the public goods of political activism, civic attachments, public interest work, and so on. They may be requested by ethnic groups, political organizations, or communities (for example, entire towns) that have suffered the loss of most of their members, have been attacked as collectivities, or have been affected by damages to some of their members. For example, the town of Trujillo is making the case for collective reparations because the town’s priest was murdered in the 1990s.



Finding and Losing Feminism in Transition

475

61. Comisión Nacional de Reparación y Reconciliación, Las Mujeres y la Reparación Colectiva en Colombia (Bogotá: Imprenta Nacional, 2012), 52–­106, http://reflex​ ionesacademicas.uao.edu.co/wp-content/uploads/2014/07/las-mujeres-y-la-reparacion -colectiva-en-colombia.pdf. 62. Ibid., 112–­13. 63. The director of UARIV changed in 2016. Presently the position is held by a politician from the Liberal Party (Alan Jara). 64. Departamento Nacional de Planeación, Lineamientos de Política Pública para la Prevención de Riesgos, la Protección y Garantía de los Derechos de las Mujeres Víctimas del conflicto armado (Cartilla: CONPES 3784, 2013). 65. Eduardo Montealegre Lynett, Informe de Gestión 2013–­2014 (Bogotá: Fiscalía General de la Nación: Imprenta Nacional de Colombia, 2014). 66. Ibid., 30–­31. 67. Ibid., 63. 68. Ibid, 62. 69. See the description of this network in http://www.americalatinagenera​.org​/ (accessed January 5, 2015). 70. The MTMCA has produced twelve reports to date. As of August 13, 2015, the reports were available on MTMCA’s own website, www.mujeryconflictoarmado.org. The reports are no longer available on the website, however. They may be found on a variety of host pages, ranging from those belonging to research groups to pages that are individually owned and managed. Although all organizations in MTMCA give guidelines and feedback on the reports, they are usually written by independent consultants. 71. Corporación Humanas, “Violencia sexual en conflicto armado. Caracterización de contextos y estrategias para su judicialización: Contexto del accionar de Hernán Giraldo Serna comandante del Bloque Resistencia Tayrona” (2011): Corporación Humanas provides an account of how Hernán Giraldo used sex with minors—­ particularly virgins—­to consolidate a familial network of influence in the Caribbean Coastal region of Colombia; Corporación Humanas, “Violencia sexual en conflicto armado. Caracterización de contextos y estrategias para su judicialización: Contexto en el que se inscriben las acciones de la violencia sexual llevadas a cabo por el Bloque Catatumbo en Norte de Santander 1999—­2004,” (2011): Corporación Humanas maps out and provides evidence for the strategies of the Catatumbo Division of the paramilitary to obtain territorial control; Corporación Humanas, “Mujeres en Territorios Urbanos de Inseguridad” (2013): Corporación Humanas explains how the armed conflict moved to the cities after the demobilization of the paramilitary, increasing risks for women. This line of argument started to develop in two previous reports: Corporación Humanas and UNIFEM, Riesgos para la seguridad de las mujeres en procesos de reintegración de excombatientes (Bogotá: Humanas, 2005); and Cecilia Barraza and Luz Piedad Caicedo, Mujeres entre mafiosos y señores de la guerra (Bogotá: Anthropos, 2007). See also Corporación Sisma Mujer, Mas allá de las cifras (Bogotá: Corporación Sisma Mujer, 2008); Corporación Sisma Mujer, Mujeres en Conflicto: Violencia Sexual y Paramilitarismo (Bogotá: Corporación Sisma Mujer, 2009); and Corporación Sisma Mujer, Crímenes de Lesa Humanidad, Violencia Sexual y Justicia de Género en Colombia (Bogotá: Corporación Sisma Mujer,

476

Isabel Cristina Jaramillo Sierra

2011); for the argument that violence against women in the Colombian armed conflict constitutes a crime against humanity. 72. The results of the survey on the prevalence of sexual violence in Colombia’s armed conflict are discussed in Casa de la Mujer, Primera Encuesta de Prevalencia de Violencia Sexual contra las Mujeres en el marco del Conflicto Armado en Colombia 2001–­2 009 (Bogotá: Development Corporation Ministry of Foreign Affairs and OXFAM, 2011), http://www.oxfamintermon.org/sites/default/files/documentos​ /files/101206_Primera_Encuesta_de_Prevalencia.pdf; and Casa de la Mujer, “Propuestas de la Cumbre Nacional de Mujeres y Paz a la Mesa de Negociación,” Febuary 2015, http://www.ens.org.co/wp-content/uploads/2016/11/Propuestas-de-la-Cumbre -Nacional-de-Mujeres-y-Paz-a-la-Mesa-de-Negociaci%C3%B3n.pdf. 73. Casa de la Mujer, Gestando la paz. 74. Ibid., 13–­14. 75. See http://www.mujeresquecrean.org/. 76. See http://www.cerfami.org.co/. 77. To verify this information I sent out emails to key decision makers. Isabel C. Jaramillo-­Sierra to Suayán Barón Melgarejo, UARIV, April 10, 2014 (written communication); Isabel C. Jaramillo Sierra to Lina Maria Moreno, OIM (Organization for International Migrations), April 15, 2014 (written communication); Isabel C. Jaramillo Sierra to Zully Moreno Villamizar, Gender Litigation Group in the office of the Mayor of Bogotá, April 15, 2014 (written communication). 78. Dianna Quigua (Casa de la Mujer), phone interview by Olga Patricia Vasquez, January 18, 2014; Comunicaciones (Humanas), phone interview by Olga Patricia Vasquez, January 20, 2014; Nataly Perez (Sisma Mujeres), phone interview by Olga Patricia Vasquez, January 20, 2014; Julianna Vargas (Grupo de investigación de género de la Unidad de Contexto de la Fiscalía), phone interview by Olga Patricia Vasquez, January 2,0 2014; Nancy Prada (Centro de Memoria Histórica), written communication addressed to Olga Patricia Vasquez, January 23, 2014. 79. See, in general, Wills Obregón, Inclusión sin Representación; Isabel Cristina Jaramillo Sierra and Tatiana Alfonso Sierra, Mujeres, Cortes y Medios: La Reforma Judicial del Aborto in Colombia (Bogotá: Siglo del Hombre Editores y Universidad de los Andes, 2008); and María Eugenia Ibarra Melo, “Acciones Colectivas de Mujeres por la Verdad, la Justicia y la Reparación,” Reflexión Política 13, no. 25 (2011): 136–­50. 80. I have attempted an interpretation of the reasons that led feminists to prefer lobbying before Congress to litigation in Jaramillo Sierra and Alfonso Sierra, Mujeres, Cortes y Medios. Julieta Lemaitre´s argument about legal fetishism, in which all power is attributed to the enactment of the rule and little attention is paid to the actual practices it transforms, could also be useful in understanding this particularity. See Julieta Lemaitre, El Derecho como Conjuro (Bogotá: Siglo del Hombre Editores y Universidad de los Andes, 2008). 81. Sentencia Corte Constitucional T-­496 de 2008, majority opinion by Jaime Córdoba Triviño. 82. Auto Corte Constitucional AU-­092 de 2008, majority opinion by Manuel José Cepeda. 83. See injunction relief for Liga de Mujeres Desplazadas, MC 319-­09, Inter-­ American Court of Human Rights.



Finding and Losing Feminism in Transition

477

84. See injunction relief for Corporación Humanas, Colombia, MC 099-­2010, Inter-­A merican Court of Human Rights. 85. Ibarra Melo, “Mujeres, verdad, justicia y reparación.” 86. Corporación Humanas, “Contexto del accionar de Hernán Giraldo Serna”; Corporación Humanas, “Contexto en el que se inscriben las acciones de la violencia sexual llevadas a cabo por el Bloque Catatumbo en Norte de Santander 1999–­2004,” in La Violencia Sexual: Una Estrategia Paramilitar en Colombia (Bogotá: Corporación Humanas, 2013), 45–­47. 87. See Donny Meertens and Richard Stoller, “Facing Destruction, Rebuilding Life: Gender and the Internally Displaced in Colombia,” Latin American Perspectives 28, no. 1 (January 2001): 132–­48; Valentina Calderon, Margarita Gáfaro, and Ana Maria Ibañez, “Desplazamiento forzoso, participación laboral femenina y poder de negociación en el hogar: ¿Empodera el conflicto a las mujeres?,” Documentos Cede 009252 (October 2011), https://economia.uniandes.edu.co/component/booklibrary /478/showCategory/46/Documentos%20CEDE. 88. United Nations Human Rights Office of the High Commission, Violence against Women, Its Causes and Consequences, E/CN.4/2002/83/Add.1, January 28, 2002, submitted in accordance with United Nations Human Rights Office of the High Commission, Violence against Women—­Visit to Colombia, E/CN.4/2002/83/ Add.3, March 11, 2002. The report asserts on page 12: “Violence against women continues to occur at alarming levels and is worsening in the context of the armed conflict.” 89. Ibid. 90. Ibid., 24. 91. Amnesty International, Scarred Bodies, Hidden Crimes (New York: Amnesty International, 2004), 10. 92. Sentencia Corte Constitucional T-­025 de 2004, majority opinion by Manuel José Cepeda Espinosa. 93. Translation by the author. Sentencia Corte Constitucional T-­025 de 2004. 94. According to the follow-­up reports available at Sisma Mujer’s website, www .sismamujer.org, little has been achieved along this line. The Court has continued to issue decisions based on the continuum hypothesis: Mesa de Seguimiento al Auto 092 de 2008, “Quinto informe de Seguimiento al Auto 092 de la Corte Constitucional—­ Anexo Reservado” (October 2013), https://www.colectivodeabogados.org/IMG​ /pdf/v_informe_final.pdf; and Mesa de Seguimiento al Auto 092 de 2008, “Acceso a la Justicia Para Mujeres Victimes de Violencia Sexual, Sexto Informe de seguimiento al Auto 092 de 2008 y Primer Informe de seguimiento al auto 09 de 2015” (March 2016), http://www.sismamujer.org/wp-content/uploads/2016/04/AUTO-SEXTO​ -WEB.pdf. 95. ¡Basta Ya!, esp. 110–­255. Also “Bases de datos ¡Basta ya!,” Centro Nacional De Memoria Histórica, http://www.centrodememoriahistorica.gov.co/micrositios/infor​ meGeneral/basesDatos.html (accessed August 15, 2015). 96. See “Registro Único de Victimas (RUV),” http://rni.unidadvictimas.gov.co /RUV. 97. Instituto Nacional de Medicina Legal y Ciencias Forenses, “Dato Para la Vida,” Forensis 16, no. 1 (2014): 91–­115, 472, and 277.

478

Isabel Cristina Jaramillo Sierra

98. See http://www.cifrasyconceptos.com/secuestro/secuestros_genero.php (last visited August 15, 2015). See also the support to these data from the Center for Historic Memory, “Las cifras del secuestro,” http://www.centrodememoriahistorica.gov.co /index.php/noticias/noticias-cmh/1530-las-cifras-del-secuestro (accessed August 15, 2015). 99. Available at www.centrodememoriahistorica.gov.co/. 100. See Centro de Memoria Historica, “Encuesta Nacional ¿Qué piensan los colombianos después de siete años de justicia y paz?” (2012), https://conpaz.uniandes​ .edu.co/es/index.php/publicas/documentos. 101. In fact, this is exactly the finding reported by Donny Meertens in her work with displaced women in the Cordoba region of Colombia. Meertens and Stoller, “Facing Destruction, Rebuilding Life.” 102. See, e.g., Flor Edilma Osorio Perez and Margarita Ortega Brena, “Forced Displacement among Rural Women in Colombia,” Latin American Perspectives 35, no. 6 (November 2008): 29–­40. 103. Comisión de Seguimiento de las Políticas Públicas Sobre el Desplazamiento Forzado, XII Informe de Seguimiento. El Desplazamiento Forzado en el Caso de las Mujeres, Hogares, Niños, Niñas y Adolescentes (Bogotá: CODHES, 2009), 8, 17, 20. 104. Ibid., 18. 105. Ibid., 11, 20. 106. Calderon, Gáfaro, and Ibañez, “Desplazamiento forzoso.” 107. Profamilia, “Salud Sexual y Reproductiva en Zonas Marginales: Situación de las Mujeres Desplazadas 2005” (2005), http://www.acnur.org/fileadmin/news ​_ imported_files/COI_1475.pdf?view=1. 108. Stefanie Engel and Ana María Ibañez, “Displacement due to Violence in Colombia: A Household Level Analysis,” Economic Development and Cultural Change 55, no. 2 (January 2007): 335–­65. 109. Abbey Steele, “Seeking Safety: Avoiding Displacement and Choosing Destinations in Civil Wars,” Journal of Peace Research 46, no. 3 (May 2009): 419–­29. 110. Ibañez and Moya, La Población desplazada, 63. 111. UARIV, Informe de Rendición de Cuentas 2014 (Bogotá: UARIV, 2015), 25. 112. Auto Corte Constitucional AU099 de 2013, majority opinion by Luis Ernesto Vargas Silva. 113. As suggested by Ibañez and Moya, La Población desplazada, 104–­23.

C H A P T E R 18

Follow the Numbers Global Governmentality and the Violence against Women Agenda in Occupied Palestine REMA HAMMAMI

From December 2005 to January 2006, the Palestinian Central Bureau of Statistics (PCBS) undertook its first survey of domestic violence in the West Bank and Gaza Strip.1 Advertised as the first such survey ever undertaken in the Arab world, it was underwritten by funds from the Bureau’s international donors (including the European Union, World Bank, British Overseas Development Aid, Norwegian Representatives Office, and Swiss Cooperation), while the steering committee charged with developing the survey brought together technicians from the Bureau with representatives from a number of Palestinian National Authority (PNA) ministries, local NGOs, and women’s organizations. Although the study was called a “domestic violence survey,” it actually measured a range of locations, perpetrators, and victims of violence in Palestinian society (including married and unmarried males and females; victims of violence in the public sphere, including from the Israeli occupation; and violence in the private sphere between family members). However, the press release highlighted only the data on female victims of domestic violence, with the dramatic findings that 23.3 percent of “ever married” women had been exposed to at least one incident of physical violence in 2005, 61.7 percent had been exposed at least once to psychological violence, and 10.9 percent had been exposed to at least one incident of sexual violence.2 The findings, circulated in the Palestinian media, among women’s NGO activists, as well as those parts of the international donor community engaged in gender issues, became highly visible only when Human Rights Watch used them in 479

480

Rema Hammami

a special gender-­focused report on violence against women (VAW) in the occupied territories—­which subsequently got front-­page coverage in the New York Times as well as in Israeli media outlets. In the subsequent period, Palestinian domestic violence became the most high-­profile and almost singular issue dominating agendas about Palestinian women in the West Bank and Gaza. It has become the cornerstone of initiatives aimed at addressing women’s rights and empowerment by the PNA, local and international NGOs, and local women’s organizations. It is now the mainstay of “gender programming” among both the international development and humanitarian communities operating across occupied Palestine. Added to this are the findings of public opinion polls that have regularly found a high level of public concern over domestic violence in Palestinian society, as well as the recurrent and alarming reports of women’s counseling organizations that work on various aspects of domestic violence—­the experts in the field. Taken together, the evidence and activities produced by this dense array of local, international, and transnational actors, crossing government and NGOs, development and humanitarian spheres, public policy, as well as public opinion, have produced a commonsense that domestic violence—­specifically, husbands’ violence against wives—­is pervasive, long-­standing, and a rising phenomenon in Palestinian society. This chapter is not about interpersonal violence as an aspect of the lived experiences of women, men, and children within the home or family in Palestine. Instead, it focuses on the imperial geopolitics surrounding the entry of the global anti-­VAW agenda into occupied Palestine and its production of a dominant notion of domestic violence that has actually precluded a nuanced understanding of various forms of interpersonal conflict and abuse and their possible intersections with the wider context of Israeli sovereign violence.3 It also maps the global agenda’s productivity as it has unfolded on the ground and at different scales of power. Through the Palestinian case, my larger aim is to shed light on the global power–­k nowledge nexus that has to a large degree codified how VAW is to be measured in countries of the “developing South” in contrast to normative measures used in national-­level VAW surveys in Euro-­America. Through what I call “statistical apartheid,” VAW as



Follow the Numbers

481

a social problem has been largely offshored to the non-­West, where the normative measure can produce outcomes confirming its “pandemic” proportions. I trace the genealogy of this global statistical norm for measuring VAW in the non-­West and its consolidation into “best practice” within institutions of global governance under the guise of “ethical considerations.” The thorny debates around creating comparative global statistical knowledge on VAW by transnational feminists operating within the UN system has been the subject of a recent critical study by Sally Engle Merry.4 The analysis here departs through its focus on the process of codification through the actual practice of measuring VAW that has evolved in the wider context of these institutional actors and activists. I argue that forms of feminist “expert knowledge”—­what Janet Halley calls “Governance Feminism” or Vasuki Nesiah terms “International Conflict Feminism”—­operating through the UN have produced the hegemonic truths that have enabled combating VAW to become a cornerstone of contemporary forms of global governmentality in the non-­West.5 As such, the case of VAW in Palestine is likely exceptional only in terms of its contextual details.

The VAW Success Story in Palestine: From Military Occupation to “Earning Sovereignty” External assistance in oPt [Occupied Palestinian Territories] continues to play a critical role in development. There are 83 bilateral donors providing budget support to the PA [Palestinian Authority] or funding to NGO projects. . . . The United Nations system is represented with 22 agencies. . . . There are 150 international NGOs . . . and 200 Palestinian NGOs.6 The international donor community has financed not only Israel’s continued occupation but also its expansionist agenda—­at the expense of international law, of the well-­being of the Palestinian population, of their right to self-­determination, and of the international community’s own stated developmental and political objectives.7

At face value, the linear history of the development of the domestic violence agenda in occupied Palestine might appear like a relative

482

Rema Hammami

success story in the annals of contemporary internationally overseen “gender-­inclusive” state-­building processes as well as in humanitarian interventions responsive to UN Security Council Resolution 1325 (on women, peace, and security): a modern, democratic government in the making (the Palestinian National Authority) responsive to the concerns of its civil society actors regarding VAW in 2005 encouraged its statistical bureau to undertake “evidence-­based research” using international standards and survey frameworks on the issue. Two years later, their dramatic findings resulted in the creation of a governmental task force to address VAW (bringing together government ministries, NGOs, and international organizations) who then developed a national strategy to “combat violence against women,” which was ultimately adopted by the government’s Council of Ministers in 2011. International organizations operating in Palestine made VAW a main priority across their programming (be it in “state-­building” and “rule of law” or “psycho-­social interventions” and “protection” responsibilities within Gaza’s “humanitarian crisis”). European governments individually and under the European Union, as well as the American government, provided funds for VAW’s prevention and treatment. The handful of local women’s organizations who had been working on the issues for two decades now found themselves a small minority among a crowded field of actors working on addressing Palestine’s domestic violence problem. But this linear history of success actually hides a much a more complex set of geopolitical relations and processes through which Palestinian domestic violence came to be articulated in specific ways, made visible, and then constantly circulated through and across a range of intersecting local and global domains, where it became privileged as Palestinian society’s most prominent social problem as well as its particular violence problem. No discussion of Palestine that focuses solely on the Israeli occupation, settler colonialism, the development industry, or the “international community” can capture the complex imperial/colonial formation that Palestine has become or, more exactly, that has decomposed and recomposed Palestine into what we have now—­a fragmented archipelago of contending, contradictory geopolitical spaces in which forms of biopolitical and necropolitical power intersect but are differentially distributed across them.



Follow the Numbers

483

This complex configuration of power and violence is rooted in occupied Palestine’s entry into the new imperial modalities for the containment of zones of conflict in the post–­Cold War era through “internationally mandated” interventions of state and/or peace building and as embodied in the 1993 Oslo Peace Accords between Israel and the Palestine Liberation Organization.8 These interventions rely on broad and adaptable assemblages of international institutions, NGOs, private and government contractors, security agencies, development experts, and humanitarians brought in to “manage postconflict transitions.” A huge literature has developed from the 1990s onward addressing various aspects of these post–­Cold War interventionary governmentalities in relation to collapsed or failed states, or state-­building processes after imperial military interventions (such as Afghanistan and Iraq).9 Writers on these processes have noted how they have led to the fusing of development with security;10 the confounding of humanitarianism with war and imperial military intervention;11 and the instantiation of contemporary forms of tutelage that echo those of the colonial past.12 Palestine fits into a specific subset of these conflict zones—­what conventional international relations scholars call “sovereignty conflicts”: national liberation struggles that remained unresolved after the Cold War, such as East Timor, Western Sahara, and South Sudan.13 However, the prescriptions of state or peace building regardless of the differences in conflict situations have been quite similar—­what Roger Mac Ginty has helpfully called “the Flat-­Pack Peace” (in a gesture to IKEA packaging) but what is called in the literature the “Liberal Peace.”14 Its normative components will be recognizable to anyone working on postconflict state or peace building and, equally, to anyone who has a basic knowledge of the Oslo Accords. At the macro-­political and program levels this manifests itself in ceasefire monitoring, formalized peace negotiations, Disarmament Demobilization and Reintegration (DDR), Security Sector Reform (SSR), civil society capacity-­building, post peace accord elections, civil service reform, good governance, marketization and economic restructuring. At the project level, the standardized peace manifests itself in everything from voter registration drives to women’s empowerment schemes.15

484

Rema Hammami

Given the Palestinian situation at the start of the peace process in 1994 of a civilian population denied any institutions of self-­rule under Israeli military occupation, the global apparatus of state building had to actually create the very infrastructure on which this overall template could be applied. This included developing the entire edifice of the PNA (ministries, a parliament, a legal framework, and so on), as well as building up from scratch a Palestinian “police” force to securitize the entire process by quelling internal resistance to it.16 The stated logic of peace-­building interventions in “sovereignty conflicts” is that rather than sovereignty being an innate right enshrined in international law, it is now a status to be earned through good behavior—­specifically by achieving positive benchmarks along the normative trajectories of the liberal peace outlined above.17 Given that the tutors and the judges are one and the same, the result is the creation of a powerful material and discursive apparatus that channels desires for self-­determination down specific regulatory paths. But rather than leading to independence or postconflict liberal states, the effects of these interventions have everywhere resulted in creating ongoing and problematic forms of imperial trusteeship over nonsovereign populations (such as in Kosovo, in Bosnia Herzegovina, and formerly in East Timor) or even more catastrophic types of conflict and state failure such as in post-­intervention Iraq and Afghanistan.18 In Palestine, the presence of this apparatus of global governmentality over twenty years has resulted in a contemporary form of imperial trusteeship marked by what Mariella Pandolfi calls (in relation to Kosovo) the “Permanent Transition.”19 However, another crucial specificity of Palestine’s “conflict situation” is that it involves a sovereign imperial ally—­Israel. As such from the outset, the trusteeship and its assemblage on the ground have worked within Israel’s parameters and constantly harmonized its interventions with Israel’s unfolding logics. At core the relationship struck between the global apparatus and its imperial ally in the 1994 Oslo Accords was that what became the trusteeship took over the biopolitical regulation of the subject Palestinian population (including its government-­in-­the-­making) but left intact the unfolding necropolitics of Israeli sovereign rule over those same subjects. The trusteeship also operated according to and in parallel with the territorial desires of the Israeli sovereign, thus creating stronger and



Follow the Numbers

485

weaker zones of protection and deploying different modalities for the management of the subject population across them. “Areas A”—­t he main towns scattered across the West Bank—­are the seats of the trusteeship, where currently with a compliant PA, state building under the logics of earned sovereignty operates and the global assemblage works under the rubric of “development.” Next door, the trusteeship does not trespass into Israel’s settler colonial frontier, “Area C”—­t he vast majority of the West Bank’s territory (65 percent) that surrounds the small pockets of “Area A”—­nor does it interfere in East Jerusalem, illegally annexed by Israel in 1968. In both spaces, the trusteeship at most allows the humanitarian and human rights constituents of the assemblage to monitor Israel’s settler colonial violence and distribute humanitarian aid or legal advice. But it is in Gaza, turned by Israel into an internment camp (or what Daryl Li has more aptly termed “an animal pen”20), that we so clearly see the synergies between the Israeli sovereign and the trusteeship: the former blockades, bombs, and murders; the latter imposes international sanctions (on the Hamas government), monitors the death and destruction, and provides humanitarian relief.

“The West Bank First Program” There is no space here to go into detail about how this complex configuration of power unfolded over twenty years to reach the particular now, which has become Palestine. But the “domestic violence problem” entered the frame in a period after the implosion and collapse of the original peace-­building edifice in 2000 within the subsequent attempts of the trusteeship with local technocratic elites to reinstate the logics of earned sovereignty again. This attempt at reconstruction was initially codified in 2002 in a revised version of the original Oslo formula, now called the “Performance-­Based and Goal-­Driven Roadmap to Peace.” However, the processes of implosion, destruction, and reconstruction continued leading in 2006 to two differentially territorialized competing Palestinian governance structures. In Gaza, a rogue Palestinian government (under Hamas) was put under international sanctions, and Gaza from then on became marked off as a zone of “Humanitarian Crisis.” In Ramallah, West Bank, an internationally legitimated technocratic Palestinian leadership was constituted that was fully wedded to the modalities of earned sovereignty, even under

486

Rema Hammami

the much more stringent regulatory techniques of the “Road Map.” This move of putting half of Humpty Dumpty back together again is called the “West Bank First Project” and marks the moment when the trusteeship and a Palestinian leadership were finally in total political synergy.

The Local/Global of Violence against Women I opened this chapter with the PCBS’s 2005 domestic violence survey, not because it is the starting point in the formation of the “domestic violence as Palestinian social problem,” but because it is a critical node within it. In the preceding year, another high-­profile global human rights organization, Amnesty International, did a first report on the issue similar to that of Human Rights Watch—­but, missing the statistical evidence, was unable to rally the same level of exposure.21 As such, the importance of the 2005 survey is that it was the moment when technical knowledge production entered to make this particular social problem visible and legible, thus making it a bearer of various sets of power relations. Over the past two decades, combating VAW or gender-­based violence (GBV) has become a powerful and visible global agenda. As Keck and Sikkink note, “By the mid 1990s it had become the dominant global women’s issue and the most dynamic new international human rights concern.”22 The power of this concern has since the end of the Cold War led to a “norm cascade” in international governance—­with more than twenty-­five UN protocols or instruments and conventions being passed on various aspects of VAW and subsequently GBV.23 These have become “transversal issues” within global governance, no longer marginalized to women’s domain (such as the UNIFEM / UN Women, or the Convention on the Elimination of All Forms of Discrimination against Women [CEDAW] Commission) but found across institutions and practices dealing with almost every aspect of the UN’s workings.24 A large feminist and social movement literature has documented the rise to power of this agenda, predominantly dealing with it as a success story of “transnational women’s organizing.”25 All of that literature sees this as a complex globally networked movement that brought thinkers, activists, and NGOs from north and south together in a dynamic process of agenda shaping and setting through UN and other



Follow the Numbers

487

global forums. However, they all note the dominant role of North American second-­wave radical feminism in formulating VAW as the foundational issue of this new global movement.26 More recently, a range of feminist critiques of this global feminist success story have emerged. Some focus on the exclusionary and homogenizing effects of norm creation, in which actual cultural contexts are ignored while reified notions of culture are posed as the obstacle to universal standards and outcomes.27 Other work critiques the global agenda by analyzing how it powerfully and problematically recodes local activism around VAW.28 The most trenchant critiques have emerged from North American feminist legal theorists, in particular those using the framework of Governance Feminism (GF) as developed by Janet Halley and as further elaborated in this book.29 The analytical framework offered by Governance Feminism provides a number of critical insights relevant to understanding the processes through which the global anti-­VAW agenda was elaborated, traveled through various circuits of power, and unfolded (in often unforeseen guises) in varying contexts across different geographic scales of power.30 In contrast to the “success story” offered by the dominant narratives above, the GF approach critically problematizes the vehicle through which “transnational feminists” sought to wield power “for the good of women globally.” Rather than taking UN and other global institutions as benevolent purveyors of development, human rights, or humanitarianism, the GF approach situates them in the larger complex of contemporary global circuits of power and their changing rationales and forms of rule in a neoliberal and post–­September 11 world order, dominated by the logics of exclusion, securitization, and policing. By grounding their analysis within a critical reading of institutions of global power, the GF approach focuses on the dovetailing of certain strands of feminist thinking with wider geopolitical priorities at work within these institutions. Thus, rather than simply focusing only on transnational feminists’ energy, creative argumentation, and organizing as the means through which their agendas gained traction within these very nonfeminist institutions, GF looks at the process as two-­sided—­t hat certain feminist ideas were of use to contemporary governing rationales.31 And it is in that process of uptake of what was ripe for the picking versus what agendas, issues, and voices were excluded that we should seek to understand the problematic consequences of feminist ideas

488

Rema Hammami

walking the halls of global power. Thus, rather than well-­meaning feminist intentions being subverted, the GF analytic suggests that the very desire to wield power in these institutions foundationally foreclosed other feminist possibilities and outcomes.32

Gender Symmetry and Crime/Victimization: VAW Metrics of Defeat in Euro-­America Less well known than how VAW made it into global governance through various forms of transnational activism is how this process also involved struggles over particular meanings of VAW that depended crucially on how it was to be measured. Over the 1980s and 1990s, statistical surveys and the proper measures necessary to capture the extent of VAW became central to academic and public debates around the extent of domestic abuse in North American and European contexts. Statistics showing high prevalence were seen by VAW activists as necessary for raising awareness of the extent of the problem and putting it into public debate and the policy arena.33 As well, recording high prevalence rates could provide counterevidence to the dominant discourse of domestic violence as a limited problem of individual deviance or psychopathology. The struggle over statistical measurement was not only over the scale of the problem but about enabling a specific feminist meaning to be attached to that scale: that VAW was a wider structural dimension of patriarchal control of women.34 This struggle coalesced around a metric called the Conflicts Tactics Scale (CTS), first developed in the 1970s in family conflict studies in North America. In Europe and North America, two conceptual frameworks have dominated national-­level statistical strategies for measuring domestic or interpersonal violence: “Family Conflict Surveys” and “Crime Victimization Surveys.”35 Studies of the same population (such as in the United States and the United Kingdom) using the two different approaches have found wildly different outcomes, due to the different ways these frameworks conceptualize domestic violence and define the proper procedures for measuring it. Crime victimization frameworks treats domestic abuse as crime and include a wide range of assaults, including sexual assault, as well as a



Follow the Numbers

489

wide range of possible perpetrators (not just cohabiting spouses, but ex-­spouses, partners, and various family members). Fundamentally, they ask “about those events that individuals experience—­or even report to authorities—­as a crime, and therefore miss events that are neither perceived nor reported by them as crimes.”36 As such, in the process of measuring domestic or interpersonal violence, the core feature of Crime Victimization Surveys (in relation to Family Conflict Surveys) is that they explicitly frame the study and interview context to participants as about violence or personal safety. In addition, they count as violence only those acts that are subjectively assessed as violent by respondents. Although Crime Victimization Surveys usually produce low prevalence rates of domestic violence, they regularly show “gender asymmetry”: men are the dominant perpetrators of abuse while women are the vast majority of victims.37 In contrast, Family Conflict frameworks frame domestic or intimate ­partner violence not as crime but as individuals’ experience with various ways of expressing conflict in intimate partnerships. The normative opening to these surveys uses wording such as: “No matter how well a couple gets along, there are times when they disagree, get annoyed with the other person, or just have spats or fights because they’re in a bad mood or tired or for some other reason.”38 While narrowing the possible range of perpetrators to current (or past) cohabiting partners, they expand the notion of domestic violence to encompass all possible experiences of conflict, from outright violence to those that are not especially serious or severe, that do not result in injury, and, most significantly, that individuals neither perceive nor report as violence.39 Thus, in contrast to Crime Victimization frameworks, the core feature of Family Conflict frameworks is that they frame the interview context not as about violence or personal safety but rather as routine intimate partner or marital conflict.40 At the same time, they measure qualitatively different incidents of those conflicts solely as series of behavioral acts—­ignoring whether respondents subjectively assessed them as violence or not.41 Not surprisingly, Family Conflict frameworks produce much higher prevalence rates than Crime Victimization frameworks. In the United States, surveys using the Family Conflict framework over the 1970s and 1980s found twelve times the level of domestic violence as those using the Crime Victimization Surveys, and

490

Rema Hammami

in a 1985 Family Conflict–­based national US survey 16 percent of cohabiting couples reported domestic violence.42 In sum, typically 16 percent of couples report some form of domestic violence in Family Conflict surveys compared with approximately 1–­4 percent when Crime Victimization surveys are used.43 Family Conflict frameworks (whether as stand-­a lone domestic violence surveys or as a module within a larger household survey) are inseparable from the scale they use to measure behavioral acts used as indicators of violence: the Conflict Tactics Scale (CTS). In its classic form, the CTS asks women and men if in the course of domestic conflicts over the previous year a partner used specific acts, beginning with a series of more benign verbal ones, then moving up a scale of physical acts starting with the less extreme (pushing, slapping) to more dangerous and injurious ones (for example, attempts to strangle). A single positive response to any of the “verbal acts indicators” of the CTS results in the respondent being classified as a victim of “psychological abuse” while a single response to the “physical acts” indicators results in the respondent being classified as a victim of physical abuse. The degree of possible harm, the context in which these acts took place, and the motivations and meanings attached to them (by those who experienced them) are not taken into consideration. Each de-­contextualized behavioral act responded to in the list of indicators is coded as an ­i nstance of domestic violence. For VAW activists in North America and Europe, the Family Conflict / CTS metric had contradictory potential. On the one hand, it results in high (usually two-­digit) prevalence rates of intimate partner or domestic violence, but since it was designed to be applied to both partners, over the 1980s it regularly found (or produced) “gender symmetry” in domestic violence between intimate partners (that is, male partners were equally victims of domestic abuse as were female partners).44 Thus, rather than providing the needed evidence of large numbers of women suffering from domestic abuse, the “gender symmetry” outcome of Family Conflict / CTS surveys actually provided fuel to the anti-­feminist backlash of the era, with media regularly reporting the existence of “husband battery.” 45 The simple solution would be to not apply the questions to men—­a move that the creator of the CTS claims he averted “feminists,” whom he claimed tried to bias the U.S. 1998 National Survey on Violence against Women, from doing.46 Given the



Follow the Numbers

491

high-­profile nature that the question of gender symmetry in domestic violence evoked not only among academic specialists but also among public policymakers and the media in North America over the 1980s and 1990s, using the Family Conflict / CTS framework while excluding male respondents was clearly not a possibility. The Family Conflict / CTS methodology and its gender symmetry findings came under severe criticism over the 1990s among Euro-­ American academic specialists working on domestic violence.47 Primarily coming from a feminist perspective with frameworks developed not only from large-­scale surveys but also from qualitative and clinical studies of female victims of intimate partner violence (IPV), the salient point of that critique is that Family Conflict / CTS surveys do not capture the patterned nature of IPV directed at women.48 Instead, the Family Conflict / CTS framework conflates expressive or “situational couple violence” with instrumental violence or patterned abuse related to what Stark calls “coercive control,” what Dobash and Dobash call “coercive forms of controlling behavior,” or what Johnson and Leone call “intimate terrorism.” 49 Among social epidemiologists, criminologists, and victimologists working on VAW, only the latter coercive, patterned forms of violence constitutes domestic abuse while the former represents circumstantial conflict. The larger outcome of these critiques was that although the Family Conflict / CTS framework ceased to be undertaken at the national level, what came to be the state-­sponsored norm in North America (and Western Europe) was the Crime Victimization framework, which (as outlined above) produces low prevalence levels (outcomes of 1–­4 percent of respondents experiencing physical violence per annum) but does capture gender asymmetry, with women six more times likely than men to suffer from IPV.50 The one successful struggle of the period to get a dedicated woman-­only survey of VAW at the national level (that might capture higher prevalence levels, gender asymmetry, and coercive control) was the 1993 Canadian National Violence against Women Survey.51 That survey was only undertaken once in Canada and then too became victim to the anti-­feminist backlash of the period, attesting to the radically closed political space for VAW activists to affect national-­level statistical knowledge production in North America and Europe over the 1990s.

492

Rema Hammami

Slaps That Travel: The Demographic and Health Surveys Although the Family Conflict framework and the original CTS have beaten a retreat from VAW studies in the West, they seem to have found a new life in the world of development in the global South. Since the late 1990s, a woman-­only version of the Family Conflict / CTS has become the normative framework used as the module on violence against women within possibly the most important global survey on population: the Demographic and Health Surveys (DHS).52 This survey framework, “Measure DHS+,” created and housed in a private U.S. company (ORC Macro, financed by USAID), is carried out at the national level in line with the global frameworks of various UN organizations (the World Health Organization [WHO], the United Nations Population Fund [UNFPA], the Joint United Nations Programme on HIV/AIDS [UNAIDS], the World Bank, and UNICEF).53 The DHS data on population, health, HIV, and nutrition are used as benchmarks by global and country policymakers. The centrality of the DHS as the global measure and monitor of health and population trends as well as fertility behavior cannot be underestimated. It is the central organizing source for the UN’s monitoring on national and global trends and has been “harmonized” into the UN measure to assess country compliance with meeting the Millennium Development Goals.54 How a woman-­only version of the Family Conflict / CTS framework was able to find new life in the colonies through its entry into the DHS turns out to be part of the “success story” of the Governance Feminism agenda of the transnational anti-­VAW women’s movement.55 In the late 1990s, ORC Macro created a standard module on domestic violence based on the CTS that could be used in its broader DHS surveys.56 By 2004, the company was able to publish a multicountry study showing the findings of the module in relation to surveys of VAW that employed other frameworks. That 2004 report was used as the instance in which ORC Macro codified the framework through which domestic violence would be studied in future DHS and Reproductive Health surveys.57 The authors of the study acknowledge in passing the critiques of the CTS but override them in favor of comparability and the problem of “cultural understandings of violence”:



Follow the Numbers

493

By asking separately about specific acts of violence, the violence measure is not affected by different understandings between women of what constitutes violence. A woman has to say whether she has, for example, ever been “slapped,” not whether she has ever experienced “violence” or even “beatings” or “physical mistreatment.” All women would probably agree what constitutes a slap, but what constitutes a violent act or what is understood as violence may vary across women and cultures. . . . In this regard, questions about discrete behaviors travel most easily across cultural and linguistic borders.58

As such, the study, while recognizing that meanings of violence are culturally mediated, sees this solely as an obstacle to be overcome in shaping a unitary measure—­and, more significantly, in shaping a normative meaning of domestic violence that can traverse borders. Thus, measuring domestic abuse through the empirical “slap” becomes the means to overcome the messy issue of cultural contexts. But of course, a slap (besides potentially having different cultural meanings), as pointed out by all of the earlier critiques of the CTS, also carries its own contextual meaning (is it a momentary instance of expressive anger, or is it part of a wider pattern of controlling and coercive behavior or “intimate terrorism”?). This latter distinction is, I would argue, the more crucial one that the DHS’s codification of the CTS was trying to overcome. The codified methodology of the DHS module also stealthily navigates through other obstacles that had been placed in the way of the CTS’s ability to capture maximum female prevalence rates of domestic abuse. Given that it is a module within a health and demographic survey automatically means that questions about violence are framed as health or well-­being questions. As well, under the goal of “ensuring ethical collection of data,” it explicitly states that the domestic violence module is to be administered only to women; if men are being interviewed in the wider survey, they are not to be asked domestic violence questions.59 The DHS offers the following opening text that should be used in the module: “When two people marry or live together, they share both good and bad moments. In your relationship with your (last) husband/partner do (did) the following happen frequently, only sometimes, or never?” 60 The link between this DHS framework and the transnational anti-­VAW activists is its explicit adoption of the WHO’s

494

Rema Hammami

Ethical and Safety Recommendations for Research on Domestic Violence against Women, a 2001 handbook created for the WHO by the International Research Network on Violence against Women (INRVAW), a group within the larger transnational anti-­VAW activist movement.61 The WHO explicitly recognizes members of INRVAW for developing the handbook’s ethical and safety standards.62 More directly, a number of the same researchers were involved in developing both the DHS and WHO survey frameworks, as noted in an expert paper to the United Nations Economic Commission for Europe 2009 Conference for Developing measures of VAW.63 The ethical measures outlined in the WHO recommendations clearly build on experiences of working with battered women in shelter movements as well as in gender-­sensitive clinical situations, such as the need to use nonjudgmental language and the importance of providing a safe space for victims to express their experience of abuse. However, these concerns when transposed to a survey setting in the global South, the ethics of care in dealing with possible victims of domestic abuse suddenly became translated into the need to use methodologies consistent with the Family Conflict / CTS framework, without explicitly mentioning it. Their recommendations include the following: for women’s safety, surveys should never be introduced as being about domestic violence in case an abusive husband overhears; thus, it is preferable to frame them as a health or well-­being survey.64 They go on to recommend the following: Current research suggests that rates of disclosure are linked to the manner in which questions are worded and asked. Generally, questions should avoid using loaded terms such as “abuse,” “rape,” or “violence” and instead ask respondents about whether or not they have experienced certain specific acts, such as being hit, slapped, or beaten. For each type of abuse, it is useful to ask about a range of behaviours along with specific cues directing the respondent to consider different settings.65

The guidelines constantly stress the need to use these methodologies because they will allow for maximum disclosure by reticent victims. And they frame the need for maximum disclosure, because “bad data providing low prevalence estimates could be used to question the importance of violence as a legitimate area of concern.” 66



Follow the Numbers

495

The logical outcome of these ethical procedures and considera­ tions is the need to use a metric consistent with a woman-­only Family Conflict / CTS framework in VAW surveys in the global South. While not explicitly justifying this with recourse to culture, the narrative logic of the arguments is that when doing a survey on domestic abuse in the global South, researchers are always interviewing women who are reticent, fearful victims of domestic abuse. The outcome of this global codification process can be seen in a UN Women “Survey of Surveys of Violence against Women.” 67 Since 2004, the survey methodologies used in countries of the global South to measure VAW have almost all been brought under the DHS. This metric is never used in countries of the global North, where either the International Violence against Women Survey (IVAWS)68 or other Crime / Victimization Survey frameworks predominate. The twelve-­month prevalence level for physical violence of countries using the IVAWS averages out to 4.5 percent, while it is between 1–­4 percent in Crime Victimization Surveys that dominate in Northern contexts. In countries where the DHS is used, the annual prevalence levels for physical violence are (with rare exceptions) well above two figures (with 17 percent being the average for annual physical violence prevalence among the eighteen countries covered by the DHS). Tellingly, where countries have been switched from an IVAWS framework to the DHS (such as the Philippines or Mozambique), there is an inevitable leap in their domestic violence prevalence levels.69 In essence, what this metrical apartheid has done is to distribute domestic violence from the global North to the South in a move similar to what Inderpal Grewal has called “outsourcing patriarchy.”70

The Productive Life of Domestic Violence in Palestine The Palestinian Central Bureau of Statistics, in undertaking its correct responsibilities within global norms and standards, used the standard DHS metrics of the CTS to measure domestic violence (with some small permutations for the local context). The 2005 survey was introduced to women as being about “family circumstances,” and the framing question for the section on domestic abuse mimicked the original Family Conflict / CTS’s opening statement. Statisticians involved in the survey at the PCBS told me that what motivated the study was requests

496

Rema Hammami

by the “National Women’s Machinery” (meaning the Ministry of Women’s Affairs guided by UNIFEM and interested NGOs), while the UNFPA provided them with the global framework. The main findings of the PCBS survey are endlessly repeated, circulating through the constant river of technical documents (National Gender Profiles, Country Program Plans, needs assessments, project proposals, NGO fact sheets, and brochures) that is the bread and butter of the global assemblage. However, the majority of them do not rely simply on “the facts” as created by PCBS (that they often misquote) but buttress them with a host of other sources, including a plethora of “data” produced by local women’s NGOs—­either other surveys (that always show domestic violence to be higher than that found by PCBS); or the numbers of women who have used the hotlines of local women’s legal aid and counseling organizations; or crime statistics on the number of female homicides (always called “honor killings” in the reports). Through this a dense landscape of Palestinian domestic violence is built that endlessly reproduces itself. And this landscape in turn provides the openings for a host of already preordained technical interventions and prescriptions to treat the very “social problem” that it has produced (mainly sensitizing workshops and campaigns). Despite counterknowledge being produced, it is unable to penetrate this dense discursive field.71 Even attempts by PCBS technicians to counter it in the second survey undertaken in 2010 had no impact on its operations. Local activists get pulled into this vortex, in need of its resources to do the real work of treating actual victims of domestic abuse, but once caught in its logics—­they constantly have to show their relevance to it—­by providing evidence that perpetuates the need for even more interventions. Along the way, many jobs get created. Women from rural areas or refugee camps get out of the house and get a chance to socialize at sensitizing workshops, where they get a free lunch (or in Gaza where they often get a coupon for humanitarian relief). Jobless women university graduates get the opportunity to add “GBV training” to their curriculum vitae—­the lucky ones becoming paid volunteers doing more sensitizing workshops for local NGOs through short-­term job creation schemes. And some women actually facing spousal abuse do get help. But while this is the everyday productivity of this power–­k nowledge formation, it is also accomplishing wider geopolitical work. Most



Follow the Numbers

497

simply by “domesticating” violence, it makes Palestine’s “violence problem” a Palestinian problem. The everyday and spectacular violence that the colonial sovereign metes out is displaced from the frame, and the pathological violence rooted in Palestinian society (or more exactly culture) is brought to the fore. The burden of violence is taken off Israel and resituated where it really belongs in the contemporary imperial meta-­narratives of Arab/Muslin patriarchal violence as represented in the violent pathologies of Palestinian manhood. Concurrently, this resituating of violence into a Palestinian domain enables the PNA to be responsibilized for it. And the PNA willingly does so in order to prove its potential and desire to be civilized. In the process, the trusteeship is instantiated in the position of the rescuer of Palestinian women from violence rather than the enabler of Israeli sovereign violence against them. And ultimately through these operations, its imperial securitization/containment logics and complicity with Israeli necropolitics are all reconfirmed as a civilizing rescue mission—­ one that is well intentioned but ultimately destined to fail given the intrinsic barbarism of the subject people it has been mandated to work on.

Notes I would like to thank the Middle East Institute and the Department of Middle Eastern, South Asian, and African Studies at Columbia University for a Carnegie Centennial Fellowship mobility grant that was critical in providing me with time and space to develop this chapter. I would also like to thank Lila Abu-­Lughod for her critical insight and support that greatly enriched its final outcome. 1. A summary of the survey’s findings is available, in both Arabic and English: Palestinian Central Bureau of Statistics, Domestic Violence Survey (December 2005–­January 2006): Main Findings (Ramallah: Palestinian Central Bureau of Statistics, 2006), http://www.pcbs.gov.ps/Downloads/book1258.pdf. 2. Palestinian Central Bureau of Statistics, Press Conference on the Preliminary Results: Domestic Violence Survey—­2005 (Ramallah: Palestinian Central Bureau of Statistics, 2006), http://www.pcbs.gov.ps/Portals/_pcbs/PressRelease/Domestic_e​ .pdf. It should be noted that this English-­language version of the press release appears to contain an error, with the 10.9 percent rate of exposure to sexual violence being erroneously recorded as 10.5 percent, contrary to how it appears in all other publications regarding the survey. 3. I use the concepts of sovereign rule and/or violence in relation to the nature of Israel’s power wielding over Palestinians in the territories it occupies to invoke Foucault’s concept of sovereign power as the right to decide over life and death, or what he distinguishes in the era of biopolitics as “the right to make live or let die.”

498

Rema Hammami

The logic of Israeli rule over the West Bank and Gaza positions Palestinians as fundamental threats to the Israeli body-­politic as well as juridical exceptions within Israeli law. My aim here is to emphasize the level of power and control that Israel has devolved to itself over Palestinian subjects in the West Bank and Gaza for fifty years—­a nd that the “international community” has facilitated—­w ith which the limited term for its international legal status, “military occupation,” can barely begin to grapple. See Michel Foucault, Society Must Be Defended: Lectures at the Collège de France, 1975–­76, ed. Mauro Bertani and Alessandro Fontana, trans. David Macey (New York: Picador, 2003). 4. Sally Engle Merry, The Seductions of Quantification: Measuring Human Rights, Gender Violence, and Sex Trafficking (Chicago: University of Chicago Press, 2016). 5. Janet Halley, Split Decisions: How and Why to Take a Break from Feminism (Princeton, N.J.: Princeton University Press, 2006), 20; see also Janet Halley, Prabha Kotiswaran, Hila Shamir, and Chantal Thomas, “From the International to the Local in Feminist Legal Responses to Rape, Prostitution/Sex Work and Sex Trafficking: Four Studies in Contemporary Governance Feminism,” Harvard Journal of Law and Gender 29, no. 2 (2006): 335–­423; Vasuki Nesiah, “Feminism as Counter-­Terrorism: The Seduction of Power,” in Gender, National Security and Counter-­Terrorism: Human Rights Perspectives, ed. Margaret L. Satterthwaite and Jayne C. Huckerby (Abingdon, U.K.: Routledge, 2013), 127–­51. 6. UNFPA, oPt Country Programme Evaluation Report for the 4th Programme Cycle 2011–­2013 (UNFPA, 2012), 23, https://web2.unfpa.org/public/about/oversight​ /evaluations/docDownload.unfpa?docId=115. 7. Anne Le More, “Killing with Kindness: Funding the Demise of a Palestinian State,” International Affairs 81, no. 5 (2005): 981–­99, at 983. 8. Those Accords mandated the creation of a Palestinian self-­governing authority (the PNA), with extremely limited powers to take responsibility over the Palestinian population within fragments of the West Bank and Gaza’s territory while Israel’s overall military occupation and macro control would remain intact. Then over a five-­year “interim” period through an internationally “shepherded” phased process of state building, the PNA was to accrue increased powers and territory devolved to it by the occupier. In brief, the devolution of more territory and powers to the PNA never happened, and following the failure of Final Status negotiations in 2000, the entire edifice imploded in open violence. See Israel–­Palestine Liberation Organization, Declaration of Principles on Interim Self-­Government Arrangements, September 13, 1993, 32 (Oslo Agreement I). 9. For use of critical theory to analyze these processes, see David Chandler, Empire in Denial: The Politics of State-­Building (London: Pluto Press, 2006); Chandler, International Statebuilding: The Rise of Post-­Liberal Governance (Abingdon, U.K.: Routledge, 2010); Mark R. Duffield, Global Governance and the New Wars: The Merging of Development and Security (London: Zed Books, 2001); Duffield, Development, Security and Unending War: Governing the World of Peoples (Cambridge: Polity Press, 2007); Laura Zanotti, Governing Disorder: UN Peace Operations, International Security, and Democratization in the Post–­Cold War Era (University Park: Pennsylvania State University Press, 2011).



Follow the Numbers

499

Among critical writers attempting to politically recuperate some aspects of these processes are Roland Paris, At War’s End: Building Peace after Civil Conflict (Cambridge: Cambridge University Press, 2004); Roland Paris and Timothy D. Sisk, The Dilemmas of Statebuilding: Confronting the Contradictions of Postwar Peace Operations (London: Routledge, 2009); Oliver P. Richmond, Maintaining Order, Making Peace (Basingstoke, U.K.: Palgrave Macmillan, 2002); Richmond, The Transformation of Peace (Basingstoke, U.K.: Palgrave Macmillan, 2005); Oliver P. Richmond and Audra Mitchell, Hybrid Forms of Peace: From Everyday Agency to Post-­Liberalism (Basingstoke, U.K.: Palgrave Macmillan, 2012); Roger Mac Ginty and Oliver P. Richmond, The Liberal Peace and Post-­War Reconstruction: Myth or Reality? (London: Routledge, 2009). The prism of neo-­humanitarianism is used by David Rieff, A Bed for the Night: Humanitarianism in Crisis (New York: Simon & Schuster, 2002); Mahmood Mamdani, Saviors and Survivors: Darfur, Politics, and the War on Terror (New York: Pantheon Books, 2009); Didier Fassin, Humanitarian Reason: A Moral History of the Present (Berkeley: University of California Press, 2012); Didier Fassin and Mariella Pandolfi, eds., Contemporary States of Emergency: The Politics of Military and Humanitarian Interventions (New York: Zone Books, 2010). For a good overview of the debates, see David Chandler, “The Uncritical Critique of ‘Liberal Peace,’” in A Liberal Peace? The Problems and Practices of Peacebuilding, ed. Susanna Campbell, David Chandler, and Meera Sabaratnam (London: Zed Books, 2011), 174–­90. For a rare example of a writer who has applied these frameworks to the Palestinian context, see Mandy Turner, “Completing the Circle: Peacebuilding as Colonial Practice in the Occupied Palestinian Territory,” International Peacekeeping 19, no. 4 (2012): 492–­507; and “Security, Cooptation and Resistance: Peacebuilding-­as-­Fragmentation in the Occupied Palestinian Territory,” in Hybrid Forms of Peace: From Everyday Agency to Post-­Liberalism, ed. Oliver P. Richmond and Audra Mitchell (Basingstoke, U.K.: Palgrave Macmillan, 2012), 182–­207. 10. Duffield, Global Governance; Duffield, Development, Security and Unending War; Chandler, Empire in Denial; Chandler, International Statebuilding. 11. Fassin, Humanitarian Reason; Fassin and Pandolfi, Contemporary States of Emergency; Rieff, A Bed for the Night. 12. Paris, At War’s End; Richmond, Maintaining Order, Making Peace; Richmond and Mitchell, Hybrid Forms of Peace; Roger Mac Ginty, International Peacebuilding and Local Resistance: Hybrid Forms of Peace (New York: Palgrave Macmillan, 2011). 13. Paul R. Williams and Francesca Jannotti Pecci, “Earned Sovereignty: Bridging the Gap between Sovereignty and Self-­Determination,” Stanford Journal of International Law 40, no. 2 (2004): 347–­86; Paul R. Williams and Karen Heymann, “Earned Sovereignty: An Emerging Conflict Resolution Approach,” ILSA Journal of International & Comparative Law 10, no. 2 (2004): 437–­45. 14. Roger Mac Ginty, “Indigenous Peace-­Making versus the Liberal Peace,” Cooperation and Conflict 43, no. 2 (2008): 139–­63; Paris, At War’s End; Paris and Sisk, The Dilemmas of Statebuilding. 15. Mac Ginty, “Indigenous Peace-­Making,” 144. 16. The United States has invested approximately $100 million annually in the development of the Palestinian Security Forces since 2007, when it started to be

500

Rema Hammami

carefully tracked. See Jim Zanotti, “U.S. Foreign Aid to the Palestinians,” Current Politics and Economics of the Middle East 2, no. 1 (2011): 177–­207. 17. Williams and Pecci, “Bridging the Gap”; Williams and Heymann, “An Emerging Conflict Resolution Approach.” 18. Chandler, Empire in Denial; Chandler, International Statebuilding; Duffield, Global Governance; Duffield, Development, Security, and Unending War. 19. Fassin and Pandolfi, Contemporary States of Emergency. 20. Daryl Li, “Disengagement and the Frontiers of Zionism,” Middle East Research and Information Project, February 16, 2008, http://www.merip.org/mero/mero021608. 21. See Amnesty International, Israel: Conflict, Occupation, and Patriarchy: Women Carry the Burden (London: Amnesty International, 2005), https://www .amnesty.org/en/documents/MDE15/016/2005/en/. 22. Margaret E. Keck and Kathryn Sikkink, Activists beyond Borders: Advocacy Networks in International Politics (Ithaca, N.Y.: Cornell University Press, 1998), 166. 23. Martha Finnemore and Kathryn Sikkink, “International Norm Dynamics and Political Change,” International Organization 52, no. 4 (1998): 887–­917. 24. Liz Kelly, “Inside Outsiders: Mainstreaming Violence against Women into Human Rights Discourse and Practice,” International Feminist Journal of Politics 7, no. 4 (2005): 471–­95. 25. Keck and Sikkink, Activists beyond Borders; Elisabeth Jay Friedman, “Gendering the Agenda: The Impact of the Transnational Women’s Rights Movement at the UN Conferences of the 1990s,” Women’s Studies International Forum 26, no. 4 (July–­August 2003): 313–­31; Kelly, “Inside Outsiders”; Sally Engle Merry, “Constructing a Global Law-­Violence against Women and the Human Rights System,” Law & Social Inquiry 28, no. 4 (2003): 941–­77; Mala Htun and S. Laurel Weldon, “The Civic Origins of Progressive Policy Change: Combating Violence against Women in Global Perspective, 1975–­2 005,” American Political Science Review 106, no. 3 (2012): 548–­69. 26. Charlotte Bunch from the Rutgers Center for Global Women’s Leadership, a central actor in the formation of the global agenda, claims that VAW was the issue selected because it had the power to bridge previous divides between northern and southern activists. According to her, with VAW, “you get a chance to deal with difference, and see culture, and race, and class, but in a framework where there is a sense that women were subordinated and subjected to this violence everywhere.” Keck and Sikkink, Activists beyond Borders, 175. 27. Merry, “Constructing a Global Law”; Sally Engle Merry, Gender Violence: A Cultural Perspective (Malden, Mass.: Wiley-­Blackwell, 2009); Kristin Bumiller, In an Abusive State: How Neoliberalism Appropriated the Feminist Movement against Sexual Violence (Durham, N.C.: Duke University Press, 2008). 28. Janet Elise Johnson, Gender Violence in Russia: The Politics of Feminist Intervention (Bloomington: Indiana University Press, 2009); Katalin Fábián, “Reframing Domestic Violence: Global Networks and Local Activism in Postcommunist Central and Eastern Europe,” in Domestic Violence in Postcommunist States: Local Activism, National Policies, and Global Forces, ed. Katalin Fábián (Bloomington: Indiana University Press, 2010), 221–­60. 29. Halley et al., “From the International to the Local”; Halley, Split Decisions.



Follow the Numbers

501

30. Halley et al., “From the International to the Local.” 31. Ibid.; Halley, Split Decisions. 32. Halley et al., “From the International to the Local.” 33. Michael Smith, “Enhancing the Quality of Survey Data on Violence against Women: A Feminist Approach,” Gender and Society 8, no. 1 (1994): 109–­27; Richard J. Gelles, “Estimating the Incidence and Prevalence of Violence against Women: National Data Systems and Sources,” Violence against Women 6, no. 7 (2000): 784–­804; R. Emerson Dobash and Russell P. Dobash, Women, Violence, and Social Change (London: Routledge, 1992). 34. Liz Kelly, “Violence against Women: A Policy of Neglect or a Neglect of Policy,” in New Agendas for Women, ed. Sylvia Walby (New York: St. Martin’s Press, 1999), 119–­47; Walter S. DeKeseredy, “Feminist Contributions to Understanding Woman Abuse: Myths, Controversies, and Realities,” Aggression and Violent Behavior, 16 (2011): 297–­302. 35. Ronet Bachman, “Incidence Rates of Violence against Women: A Comparison of the Redesigned National Crime Victimization Survey and the 1985 National Family Violence Survey,” VAWnet, January 1998, http://vawnet.org/material/incidence -rates-violence-against-women-comparison-redesigned-national-crime-victimiza tion; Sylvia Walby and Andrew Myhill, “New Survey Methodologies in Researching Violence against Women,” British Journal of Criminology 41, no. 3 (2001): 502–­22; Michael S. Kimmel, “‘Gender Symmetry’ in Domestic Violence: A Substantive and Methodological Research Review,” Violence against Women 8, no. 11 (2002): 1332–­363; Merry, The Seductions of Quantification. 36. Kimmel, “Gender Symmetry,” 1337–­338. 37. Ibid.; Walby and Myhill, “New Survey Methodologies”; Walter S. DeKeseredy and Martin D. Schwartz, “Theoretical and Definitional Issues in Violence against Women,” in Sourcebook on Violence against Women, ed. Claire M. Renzetti, Jeffrey L. Edleson, and Raquel Kennedy Bergen (Los Angeles: Sage Publications, 2011), 3–­21. 38. Daniel G. Saunders, “Are Physical Assaults by Wives and Girlfriends a Major Social Problem? A Review of the Literature,” Violence against Women 8, no. 12 (2002): 1424–­4 48, at 1429. 39. Kimmel, “Gender Symmetry,” 1338–­339. 40. Smith, “A Feminist Approach”; Kimmel, “Gender Symmetry”; Saunders, “Physical Assaults”; Bachman, “Incidence Rates.” 41. Dobash and Dobash, Women, Violence, and Social Change; Bachman, “Incidence Rates”; Kimmel, “Gender Symmetry.” 42. Walby and Myhill, “New Survey Methodologies,” 504–­5. 43. Kimmel, “Gender Symmetry,” 1339. 44. For instance, the U.S. 1985 Family Violence Survey of husband and wife violence using the CTS found that 11 percent of wives had experienced any violence by a husband in the preceding year, while 12 percent of husbands had experienced any violence by wives in the preceding year. Bachman, “Incidence Rates,” 2. 45. Bachman, “Incidence Rates”; Kelly, “Violence against Women”; Saunders, “Physical Assaults”; Michael P. Johnson and Janel M. Leone, “The Differential Effects of Intimate Terrorism and Situational Couple Violence: Findings from the National Violence against Women Survey,” Journal of Family Issues 26, no. 3 (2005): 322–­49.

502

Rema Hammami

46. See Mark B. Rosenthal, “Strauss Says National Violence Survey against Women Is Biased,” Breaking the Science, April 4, 2005, http://www.breakingthescience.org​ /StrausSaysTjadenThoennesBiased.php. 47. One strand of criticism is that by simply counting various incidents and aggregating them, the CTS lumps together different levels and forms of violence, ultimately equating a single slap with a systematic assault. Others focus on the fact that by only doing a survey on number of incidents in one year, it is not possible to track the systematic patterns of abuse and violence over many years that usually include patterns of escalation. More important, simply counting individual acts cannot differentiate between motivations and intentions for these acts, nor between contexts in which they happen. For these debates, see Russell P. Dobash and R. Emerson Dobash, “Women’s Violence to Men in Intimate Relationships: Working on a Puzzle,” British Journal of Criminology 44, no. 3 (2004): 324–­49; Michael P. Johnson, “Patriarchal Terrorism and Common Couple Violence: Two Forms of Violence against Women,” Journal of Marriage and the Family 57, no. 2 (1995): 283–­94; Johnson and Leone, “Differential Effects”; Kimmel, “Gender Symmetry”; Walby and Myhill, “New Survey Methodologies.” 48. Kimmel, “Gender Symmetry.” 49. Evan Stark, “Commentary on Johnson’s ‘Conflict and Control: Gender Symmetry and Asymmetry in Domestic Violence,’” Violence against Women 12, no. 11 (2006): 1019–­25; Dobash and Dobash, “Women’s Violence to Men”: Johnson, “Patriarchal Terrorism”; Johnson and Leone, “Differential Effects.” 50. Walby and Myhill, “New Survey Methodologies”; Kimmel, “Gender Symmetry.” 51. Holly Johnson, “Degendering Violence,” Social Politics 22, no. 3 (2015): 390–­410. 52. See the DHS+ handbook for measuring domestic violence. Sunita Kishor and Kiersten Johnson, Profiling Domestic Violence: A Multi-­Country Study (Calverton, Md.: ORC Macro, 2004). 53. Since its founding in the 1980s, the Demographic and Health Surveys (DHS) Program (formerly MEASURE DHS) has implemented more than 300 surveys in over ninety countries. Undertaken by national governments in the “developing South,” it is usually funded by USAID with support from various UN organizations such as the UNFPA, the WHO, and the World Bank. 54. See “The DHS Program: Demographic and Health Surveys,” https://dhspro​ gram.com/ (accessed December 6, 2016). See also the description and available studies on the World Bank’s website, “MEASURE DHS: Demographic and Health Surveys,” http://microdata.worldbank.org/index.php/catalog/dhs/about (accessed De­ cember 6, 2016). 55. For a critical discussion of the CTS in the context of various UN fora, see Merry, The Seductions of Quantification; Sally Engle Merry and Susan Bibler Coutin, “Technologies of Truth in the Anthropology of Conflict: AES/APLA Presidential Address, 2013,” American Ethnologist 41, no. 1 (2014): 1–­16. 56. The DHS uses the revised CTS, known as CTS2, which tried to overcome some of the critiques of the original by providing additional measures of “controlling behavior” as well as severity/injury. These do not fundamentally affect the outcome of the surveys, especially since what is primarily cited in/from national surveys are basic prevalence levels, which are not affected by these additional measures.



Follow the Numbers

503

57. Kishor and Johnson, Profiling Domestic Violence. 58. Ibid., 5–­6. 59. Ibid., 7. 60. Ibid., 109. 61. Specifically, it was a core group of researchers active in IRNVAW who undertook the WHO’s first multicountry study on the topic of women’s health and domestic violence. Some of these researchers were also involved in creating the WHO’s practical guide to researching VAW, published in the same year, as well as an earlier WHO publication, Putting Women First. The ethical standards in the practical guide to researching VAW are posed as an explicit outcome of undertaking the WHO multicountry study. See World Health Organization, WHO Multi-­ Country Study on Women’s Health and Domestic Violence against Women: Initial Results on Prevalence, Health Outcomes and Women’s Responses (Geneva: World Health Organization, 2005), http://www.who.int/gender/violence/who_multicoun​ try​_ study/summary_report/summary_report_English2.pdf; World Health Organization, Researching Violence against Women: A Practical Guide (Geneva: World Health Organization, 2005), http://www.path.org/publications/files/GBV_rvaw​ _complete.pdf; World Health Organization, Putting Women First: Ethical and Safety Recommendations for Research on Domestic Violence against Women (Geneva: World Health Organization, 2001), 7, http://www.who.int/gender/violence​ /womenfirtseng.pdf. 62. World Health Organization, Putting Women First. 63. Henrica A. F. M. (Henriette) Jansen, “Proposal for Developing and Testing a Short Module on Violence against Women,” paper presented at United Nations Economic Commission for Europe Conference of European Statisticians Expert Group Meeting: Prevention of Violence against Women, Geneva, September 28–­30, 2009, 4, https://www.unece.org/fileadmin/DAM/stats/documents/ece/ces/ge.30/2009​ /Paper1.e.pdf. 64. World Health Organization, Putting Women First, 12. 65. Ibid., 15–­16. 66. Ibid., 15. 67. Henrica A. F. M. (Henriette) Jansen, “Prevalence Surveys on Violence against Women: Challenges around Indicators, Data Collection and Use,” paper presented at UN Women Expert Group Meeting: Prevention of Violence against Women and Girls, Bangkok, September 17–­20, 2012, http://www.unwomen.org/~/media /Headquarters/Attachments/Sections/CSW/57/EGM/EGM-paper-Henriette​ -Jansen%20pdf.pdf. 68. The IVAWS is the result of the defeated 1993 Canadian Violence against Women Survey finding a new home in the global world of VAW research. Taken up by HEUNI (the European Institute for Crime Prevention and Control affiliated with the United Nations), it became a hybrid form of a Crime Victimization Survey and a dedicated VAW survey. See Johnson, “Degendering Violence,” 404. 69. The Philippines twelve-­month physical violence prevalence level jumped from 3 percent on IVAWS to 7 percent with DHS, while Mozambique jumped from 18 to 26 percent between the two surveys for sexual and physical violence twelve-­month prevalence. See Jansen, “Prevalence Surveys.”

504

Rema Hammami

70. Inderpal Grewal, “Outsourcing Patriarchy: Feminist Encounters, Transnational Mediations and the Crime of ‘Honour Killings,’” International Feminist Journal of Politics 15, no. 1 (2013): 1–­19. 71. See numerous attempts by the Institute of Women’s Studies at Birzeit University and its individual research affiliates to produce counter-­k nowledge to Palestine’s VAW “common sense,” especially the consistent attempts by Penny Johnson. Penny Johnson, “Violence All around Us: Dilemmas of Global and Local Agendas Addressing Violence against Palestinian Women, an Initial Intervention,” Cultural Dynamics 20, no. 2 (2008): 119–­31; Johnson, “Violence, Gender-­Based Violence and Protection: A Dangerous Decade,” in A Dangerous Decade: The Second Gender Profile of the West Bank and Gaza (2000–­2010) (Birzeit: Birzeit University, 2010), 93–­104, http://iws​ .birzeit.edu/sites/default/files/2016-10/English%202nd%20gender%20profile_0.pdf; Johnson, “Displacing Palestine: Palestinian Householding in an Era of Asymmetrical War,” Politics and Gender 6, no. 2 (2010): 295–­304. See also Palestinian Non-­ Governmental Organization against Domestic Violence against Women (Al Muntada), Crimes of Women’s Killing in Palestine in the Period 2004–­2006, March 2007, http://www.sawa.ps/Upload/Reports/CrimesofWomensKillinginPalestine _arabic.pdf; and the analytical report on the 2005 PCBS survey undertaken for the Bureau by the Institute of Women’s Studies, Birzeit University, Domestic Violence in the Palestinian Territory, Analytical Study, December 2006, http://www.pcbs.gov.ps​ /Downloads/book1340.pdf.

C H A P T E R 19

Indebted The Cruel Optimism of Leaning in to Empowerment VASUKI NESIAH

Lauren Berlant argues that one dimension of the cruelty of life under late capitalism is that we get attached to a cluster of promises regarding the good life that are generated by and embedded in conditions that are already not working.1 Thus, we get attached to the very conditions that defeat the fulfillment of those promises.2 The difficulty of detaching from these compromised conditions of possibility traps us in a state of prolonged crisis—­an impasse that naturalizes crisis into our ordinary. Berlant calls this emotion “cruel optimism” and notes that it introduces into our intimate and public lives a state of “crisis ordinariness.”3 This seems a particularly acute characterization of the structural function of financial debt for the economically vulnerable. Access to credit seduces with cruel optimism—­it is intertwined with a cluster of promises regarding the good life while this attachment to living on credit is embedded in conditions of economic dystopia that are precarious and unsustainable. The affective structure of “empowerment” in enabling, even easing, access to credit precisely for those who are most financially vulnerable invites cruel optimism. Within feminist development economics, empowerment is an agential, participatory vision that shapes development policy, at once legitimizing that policy and producing crisis ordinariness in its subjects. This chapter probes the work done by the promise of women’s empowerment in postconflict environments. It focuses particularly on the empowerment programs of international financial institutions and 505

506

Vasuki Nesiah

development agencies in the arena of market-­oriented postconflict economic development.4 In these contexts, interventions that seek to advance empowerment by enhancing women’s access to credit, property title, and entrepreneurship have been significant elements of the development policy apparatus. This chapter is interested in how particular feminist ideas about the empowerment of women became part of the knowledge apparatus of institutions shaping economic governance in postconflict environments—­a nd, concomitantly, how those ideas traveled into policies and processes that had far-­reaching effects on the ground—­a lthough not necessarily effects that were intended or anticipated. This chapter looks at the coming together of feminism and international development in projects advancing women’s integration into the private sector in conflict and postconflict environments. It does this partly by looking at how empowerment emerged as a nodal point for feminist development policy and partly by looking at how one large-­scale multidonor development project (in collaboration with the UN and the Sri Lankan government), the Owner Driven Housing Assistance (ODHA) program, has interfaced with debt regimes in postconflict Sri Lanka.5 The ODHA program for housing development, now completed, was aimed at providing the war-­displaced with the means to permanent shelter in the Sri Lankan postwar context and offers a particularly important context through which we can track the work of “empowerment” discourse and projects of development agencies in postconflict environments.6 ODHA also offers an interesting window through which to track how feminist insights have become mainstreamed within development policy with particular reach in conflict and postconflict environments. Concerned that development policy marginalized women, feminists have sought to ensure that empowerment is a key goal of development through economic and sociological analysis on the one hand and program development and political pressure on the other. They played a key role in developing the general policy and the specific ODHA program. This is thus a story about an emerging form of Governance Feminism. I first focus in this chapter on the path of feminist interventions into development policy and the steering of that trajectory toward the promise of empowerment. Empowerment discourse had many trajectories, but the one that has had traction with development agencies and donors over the last two decades converged—­not accidentally—­w ith

Indebted

507

neoliberal logics. In particular, property, credit and entrepreneurship were able to travel under the aura of neoliberal promises. I then turn to how feminism travels in the field of conflict and postconflict development policy. In particular, I describe what I term International Conflict Feminism (ICF). Next, I look at the intersections and convergences that bring together feminist development policy and ICF in the ODHA program in Sri Lanka. Like the overlapping zone in a Venn diagram, knowledge regimes of women’s economic empowerment intersected with knowledge regimes about women in conflict and postconflict environments and helped shape and articulate interventions such as ODHA. Finally, the concluding section locates the Sri Lankan case in relation to how GF unfolds and gets articulated in this zone of intersection. It is a zone of intersection between different trajectories of feminism (one focused on development, the other focused on conflict), as well as between feminism and neoliberalism. In my usage, GF captures the fact that feminist projects have gained significant traction in (perhaps even been mainstreamed into) the dominant law and policy landscape of post–­Cold War global governance; in particular, feminist projects for economic empowerment have had uptake in the policies and programs of development agencies working in postconflict contexts. In looking at the unprecedented debt burden that has emerged with these policies, and the distributive and other implications of debt in the contexts of ODHA of postconflict Sri Lanka, and of global economic governance, we have a window into the cruel optimism of disappearing futures.

Women’s Economic Empowerment Women’s empowerment is cited as a goal across the field of international development, postconflict reconstruction, and human rights. The 1995 Human Development Report developed a Gender Empowerment Measure to complement its Gender-­Related Development Index and to measure women’s participation in economic and political life, rather than assess women’s welfare alone.7 The UN highlighted women’s empowerment as a Millennium Development Goal in 20008 and a Sustainable Development Goal in 2015.9 The United Nations Development Programme (UNDP) has called for “bold and sustained action to advance women’s opportunities and rights and to ensure that

508

Vasuki Nesiah

women can participate and be heard” in order to enable “women’s economic empowerment.”10 The language of empowerment has a complicated history within the women’s movement and in its engagement with the field of international development. The development-­policy engagement moved gradually from an ostensibly gender-­blind approach to one that framed gender relations and women as explicit targets of development policy. A critical event punctuating this story was the 1975 International Conference on Women in Mexico, which launched the UN Decade for Women (1976–­85). To better locate the significance of this conference and its aftermath for the notion of women’s economic empowerment, we need to begin with the debates that preceded the conference within the field of development. Immediately after World War II, development was largely equated with economic growth and modernization. This was a moment when the notion of national development consolidated and got institutionalized in diverse ways in multinational institutions such as the World Bank, in the trade and aid policies advanced by the global North, and in the economic policies of the newly independent states of the global South. Yet early in the 1950s there were already rumblings of discontent from feminists who moved to address the fact that women and men were situated differently in the household, market, and nation.11 They argued that even when development policy was articulated in gender-­neutral terms, its vision and impact were deeply gendered. Partly in response to these criticisms, by the end of the 1950s and 1960s, many development agencies had shifted to an approach that framed women and children as vulnerable groups.12 Development programs focused on addressing issues such as maternal mortality had their roots in this recognition of the gendered patterns of health vulnerability; feminists argued that the danger was exacerbated in contexts that suffered resource scarcity and underdeveloped infrastructure for the delivery of health care and other services. By the 1960s and 1970s, charged with a concern for gender equality, the international development field had begun to target women as a focus of development policy, but now the focus was not only on gendered vulnerability but also on gendered agency, and particularly on women as economic actors. This approach is most familiar through its acronym, WID—­which referred to Women in Development.13

Indebted

509

The 1975 Mexico conference was pivotal in turning the focus of feminist engagements with development to empowerment. Debates at the conference laid bare the fact that there was no singular feminist approach to development—­rather, feminists had critical ideological differences, and the approaches they brought to the development field reflected those differences.14 Irene Tinker, both a participant in some of these debates and a chronicler of them, reports that “The growing disconnect between Northern feminists, especially Americans like Betty Freidan, and women from the South was highlighted at the Mexico City NGO Tribune.”15 Some would cite the 1975 conference as the moment that WID was replaced by WAD—­Women and Development.16 Third World feminists objected that WID focused on “opportunities and services rather than political power” and that these projects simplified and misunderstood the root causes of gender inequality and the factors that sustained and reproduced it.17 Gradually, partly as a result of this critique, the notion of empowerment began to enjoy uptake in feminist development circles as a way to politicize and radicalize the development field to foreground questions of consciousness-­raising and economic redistribution. Empowerment discourse initially had traction among feminist scholars and in Third World nongovernmental organizations (NGOs) and later in the UN and the international development field. A paper commissioned by the UNDP describes approaches such as WID as drawing on “Western, liberal feminist theorizing,” but it sees the critique as having a broader grounding in “women’s rights scholars and activists, as well as women’s and feminist movements, to address the power and patriarchy that lie at the root of discrimination and inequality.”18 In some ways, CEDAW, adopted by the UN in 1979, reflects a compromise among these diverse voices in pushing for equality but in ways that also invoked not just a focus on law and policymaking but the deeper structures of economy and society. Significantly, CEDAW has no mention of the language of empowerment; rather, it is the banner of “equality” (used over thirty times in the CEDAW text) that continued to shape the discussion at this stage.19 However, as one UN report detailing the story of empowerment in the development field notes, a new “Gender and Development” (GAD) framework overtook WID and WAD in the early 1980s; in contrast to the earlier approaches,

510

Vasuki Nesiah

GAD was grounded in an analysis of power relations and sought to “broaden and deepen the development focus beyond women, to address gender roles and relations, and ultimately to address the power between men and women.”20 The term “empowerment” became incorporated into the international development lexicon in this period.21 Accordingly, the 1985 Nairobi World Conference on Women presented itself as the culmination of “ten years of work on gender empowerment” and made “specific recommendations for gender empowerment in regard to health, education and employment.”22 A network of feminist economists formed DAWN (Development Alternatives with Women for a New Era) in the mid-­1980s with a clear commitment to a global South–­grounded feminism, describing itself as drawing “strength from, and . . . committed to further empowering, the women’s movement in the South.”23 By the 1990s, the language of empowerment had become ubiquitous.24 Thus, fifteen years after CEDAW spoke in the key of equality, the 1995 Beijing Declaration and Platform for Action mentions “empowerment” over thirty times.25 In its guidelines on empowerment, the United Nations Population Fund (UNFPA) offers a consolidated definition to guide its activities: Women’s empowerment has five components: women’s sense of self-­ worth; their right to have and to determine choices; their right to have access to opportunities and resources; their right to have the power to control their own lives, both within and outside the home; and their ability to influence the direction of social change to create a more just social and economic order, nationally and internationally.26

The UNFPA sees these guidelines as reflecting awareness gained over all of the “major international conferences of the 1990’s” affirming “the centrality of women’s empowerment to the success of development programmes.”27 The feminist embrace of the notion of empowerment reflected an effort to foreground women as the agents of change, not as the targets of policy. In an influential background paper to UNDP’s 1997 Human Development Report, the feminist economist Gita Sen argued that in contrast to the received orthodoxy of welfare-­driven poverty alleviation, in development programs premised on empowerment, “governments do not empower people; people empower

Indebted

511

themselves. What governments’ policies and actions can do is to create a supportive environment or act as a barrier to the empowerment process.”28 Thus, women’s empowerment was also embedded in a larger effort to democratize development and link grassroots participation to socioeconomic transformation. Today the vocabulary of “empowerment” has been mainstreamed into the international development field. The 2030 Agenda for Sustainable Development presents all seventeen sustainable development goals as “integrated and indivisible” in seeking to “realize human rights for all, achieve gender equality, and empower all women and girls.”29 This includes the postconflict development field, where, as one World Bank paper on postconflict reconstruction notes, “many of the key actors involved in post conflict reconstruction . . . have specific policies on gender mainstreaming and the empowerment of women.”30 Women’s empowerment is a partly empty buzzword, but it is partly a way to gesture to policies favoring a participatory approach to development.31 Yet, it is clear that many strands of feminist development ideology that were audible at the 1975 International Conference on Women in Mexico are much less audible in the empowerment discourse sounding from institutions such as the World Bank today. In 1995, the very capaciousness of the Beijing conference allowed for different strands of feminism to project their own diverse, even contradictory, development ideologies onto the empowerment language captured in the Declaration. For instance, for Sen, the language of empowerment was a way to flag what she referred to as the “multidimensionality” of poverty and speak of the socioeconomic in ways that highlighted the politics of economics. However, in the path from the Beijing Declaration to the World Bank paper on postconflict reconstruction, the discourse of empowerment has been narrowed in ways that facilitated its travel and uptake with actors shaping postconflict development policies and programs. As the language of empowerment got mainstreamed into international development agencies and financial institutions, it was often equated with the narrowly economistic—­empowerment traveled as individual financial empowerment, with little attention to context, culture, and social relations. To this end, empowerment often got delinked from politics, and empowerment via income generation became a project of development knowledge. This process was well under way in the

512

Vasuki Nesiah

1990s and accelerated after the 1995 Beijing conference. Thus, key actors in the development field developed methodologies to promote women’s empowerment, such as lists of best practices for implementation of policy commitment to economic empowerment. If the sociopolitical context mattered, as it did for Sen and the global South feminists at the 1975 Mexico conference, one could not produce best practices that could travel with ease. However, in the post-­Beijing world, a development agency might invoke knowledge of a women’s income-­generating activity in Country X to develop a program in Country Y in the name of empowerment. UN Women developed a set of principles for women’s empowerment to “offer practical guidance to business and the private sector on how to empower women in the workplace, marketplace and community.”32 The International Monetary Fund integrated “empowerment” into best practices for economic recovery more generally, touting “empowering women” as “smart economics.”33 The World Bank published a “Roadmap” to women’s empowerment, to identify “proven, promising, and high-­potential interventions to promote women’s economic advancement and increase women’s productivity and earnings worldwide.”34 Thus, gradually we saw the proliferation of knowledge claims about interventions that will achieve empowerment and implicitly, therefore, knowledge claims about what empowerment looks like.35 As this process became consolidated in institutional practice, empowerment policy focused—­a mong other things—­on encouraging women’s access to property title, credit, and entrepreneurship.36 In this vein, ”UN Women advocate for women’s land and property rights as part of its core strategy,”37 the World Bank highlights access to credit as a critical dimension of its new Gender Equality Strategy,38 and the United States Agency for International Development (USAID) argues that “women’s participation in entrepreneurship can help expand these economies while also leading to greater equality in society.”39 These three programmatic goals were adopted as efforts to mainstream women’s empowerment. First, the promotion of individual property rights gets incorporated into empowerment initiatives in a number of international organizations. For instance, a recent report on women’s land and property rights in the post-­2015 development agenda cited a range of development agencies, including the World Bank, the Food and Agricultural

Indebted

513

Organization (FAO), the UNDP, and several others, as sharing a consensus that women’s “secure rights to land and property” will “empower them to reach their potential as citizens and as economic actors, and enable them to take control over their own lives.” 40 CEDAW specifically notes nondiscrimination in property rights, and arguably a nondiscrimination principle is agnostic about the form of property rights—­about whether it is individual or collective, about whether it focuses on commodification or security of occupancy, about whether recognition is directed at formalization of title or simply the provision of services, and so on. However, within the development field, the orthodoxy equates property rights with formalized, commodifiable individual title, and this goal has pervaded women’s empowerment through property: women need access to commodifiable individual title.41 In many contexts, indigent communities have found that informal but socially recognized occupancy,42 rights of residency,43 public housing,44 and alternative approaches to property rights have provided greater security and less dispossession than formal, commodifiable individual title. Yet the World Bank and other institutions have led a campaign for formal titling programs in the name of what Hernando de Soto describes as “legal empowerment.” 45 De Soto, perhaps the most influential economist on questions of property rights in the development field,46 has argued that formal titling is “the gateway to economic success” and integration in the global market.47 This approach increasingly informs how feminist interventions in international development organizations equate property rights with women gaining individual title and participating in market economies. As Kerry Rittich has argued, neoliberal ideological commitments have traveled through ostensibly neutral policy initiatives (such as formalization of title) of the World Bank with far reaching maldistributive impacts.48 For instance, resonant with Rittich’s analysis of the World Bank’s 1996 World Development Report: From Plan to Market is the recommendation of the 2003 World Bank report on land policy encouraging a proactive stance in favor of awarding land rights to women.49 The report links lack of property rights to lack of credit and savings and to a range of other challenges.50 Drawing on de Soto’s analysis, it argues for commodifiable fungible property title as enabling the trust and flexibility needed for trade and economic growth51 and makes the case that collective property rights—­indeed

514

Vasuki Nesiah

any property regime anchored in social relations (such as the family or community) outside the “neutrality” of market exchange—­will inevitably be patriarchal and vulnerable to male domination. The argument of feminist economists for disaggregating the gender dynamics of the household descriptively are often taken as a normative argument for treating the individual as the appropriate unit of analysis in approaching law and policy regarding housing and landownership.52 With promotion of individual ownership incorporated into privatization and attendant policies, mainstreaming gender into privatization projects53 became a crucial focus in feminist approaches to land and housing policy.54 Alongside land and housing policy, economic empowerment has also foregrounded efforts to facilitate women’s access to credit. Thus, many development agencies have focused their postconflict reconstruction efforts on increasing availability of credit to women and on removing restrictions to women’ access to credit because of insufficient collateral, biases in the delivery of financial services, and other challenges they face in engaging fully as market actors. These have been shaped by what was often referred to as the Washington Consensus—­namely, Structural Adjustment Programs (SAPs) that international financial institutions and donor countries such as the United States deployed to offer loans with conditionalities to cash-­strapped countries in the global South. These conditionalities were aimed at making these countries more market oriented and typically involved a range of provisions with impact on debt and debt dependency, such as currency devaluations, financial deregulation, and austerity programs that reduced government spending. With SAPs thinning down the role of the state and state services, while deregulating financial instruments, the 1990s saw increased popularity of microcredit schemes and other efforts to use the market for economic stimulus and service delivery.55 Microcredit programs were developed to offer small-­scale loans to impoverished individuals and groups through localized financial agencies, such as community-­based NGOS and banks. Women have been and continue to be the primary targets of microcredit schemes and empowerment-­ oriented market reform. A World Bank note titled “Using Microcredit to Advance Women” celebrates microfinance institutions “as a blessing for Bangladesh’s poor—­especially women,” and one that “may empower women within the household.”56 In fact, the Bank argues that

Indebted

515

“microcredit programs are more attractive to poor women than to poor men. The programs have learned that women are better credit risks than men. Moreover, reaching out to more women than men promotes social development and gender equality. As a result Bangladesh’s microcredit programs target women, and membership among women is high in all three programs.”57 By easing access to credit, these schemes were seen to provide a path to financial independence and the promise of empowerment.58 A third dimension of the dominant approach to empowerment is entrepreneurship—­in particular, efforts to enable and encourage women’s integration into the market. Projects promoting entrepreneurship are seen as recognizing women’s economic agency while also being a route for income generation. To this end, many entrepreneurship-­ promotion programs have a particular focus on poor women. For instance, the International Labout Organization’s Women’s Entrepreneurship Development program seeks to “promote[] women’s entrepreneurship and support women entrepreneurs to create decent employment, achieve women’s empowerment and gender equality, and work toward poverty reduction.”59 With an emphasis on individualism and agency, women’s entrepreneurship (like microcredit and marketable individual property rights) also lodges nicely with the ideology of structural adjustment policies and the focus on private initiative rather than state intervention as the engine for economic growth.60 The convergence between these policy orientations and the discourse of empowerment in feminist development policy builds the affective structure tethering ­neoliberalism and feminism. Significantly, the “affect” is something we can read into the stance of feminist policy advocates of empowerment policies even if not for the purported beneficiaries, about whom we know little.61 Analysts of the policies championed by de Soto and others have argued that the biggest beneficiaries were elites positioned to profit from the market economy—­perhaps the same can be said of the policy elites positioned to profit from feminist development policies. In this context, Governance Feminism tethers the policy claims of neoliberalism and the normative claims of feminism to bring governance to feminism and vice versa. The policy package of entrepreneurship, microcredit schemes, and individual property claims may have particular resonance with the discourse of

516

Vasuki Nesiah

empowerment and the promise of the professional leaning in for a woman to define her own future.62

International Conflict Feminism Within the field of international development, the international agencies dealing with violence and the threat of violence (such as is invoked in the World Bank’s unit for “fragile and failed states”) treat violent conflict as akin to a fire that sweeps through a society and creates a fertile “depoliticized” terrain for new beginnings.63 As Naomi Klein has argued in The Shock Doctrine, capitalism loves a crisis, and the unsettled political terrain that often characterizes the aftermath of war and conflict are seen as fertile ground for pushing through neoliberal policy agendas before there can be organized opposition; this is what she calls disaster capitalism.64 In fact, the dynamic that Klein identifies with capitalism is more generally true for international interventions in countries deemed to be “conflict zones”; the conflict or postconflict environment is often invoked as a “failed state,” a “terra nullius,” that legitimizes “external intervention to restore a model of governance that allows its people to march forward into history rather than be weighed down by primordial conflicts.” 65 And because gender mainstreaming has reached postconflict international management, this domain also colors itself gender sensitive, inclusive, and nondiscriminatory. The power of this dynamic is that institutionalized knowledge about women’s empowerment and postconflict recovery has far-­ reaching structural and distributive effects, and it travels not as politics or ideology but as gender-­sensitive postconflict reconstruction. UN Security Council Resolution (SCR) 1325 on Women, Peace, and Security, its birthing, life, and legacy, offer an illustrative window into these dynamics. Passed by the Security Council in 2000, SCR 1325 became a central pivot point for a range of agendas at the nexus of women, peace, and security, including, in particular, addressing impunity for sexual violence in conflict and the participation of women in the security sector.66 As indicated by the 2015 UN Global Study ­reviewing SCR 1325’s first fifteen years, “Of the more than 2200 resolutions adopted by the Security Council in its seven decades of history, it is hard to think of one resolution that is better known for its name, number, and content than resolution 1325.” 67 The Global Study

Indebted

517

describes SCR 1325 as “born out of a truly global constituency of women’s organizations and advocates”;68 it is a constituency, vision, and framework that I have described in other work as International Conflict Feminism (ICF).69 ICF includes a complex of policies that take as their starting point the notion that women are victimized by conflict and excluded or marginalized in peace and security decision-­ making and postconflict recovery. Against this backdrop, ICF seeks remedies for that victimization and law and policy interventions directed at the inclusion and empowerment of women in conflict and postconflict contexts. ICF encourages a particular focus on women as victims of sexual violence and, concomitantly, a focus on prosecution of sexual violence crimes as an especially high priority. In addition to SCR 1325 and the Security Council resolutions that have followed, ICF also manifests in the gender jurisprudence of international courts and tribunals; in postconflict institution-­building / nation-­building initiatives; and in development and reconstruction policies and projects. As indicated in the 2015 UN Global Study, in each of these arenas, ICF emerges from and in turn organizes a global women’s rights network. For instance, ICF jurisprudence in international courts and tribunals was shaped by lawyers and judges within these institutions,70 as well as an active engaged community of feminist activists,71 scholars,72 and organizations73 that tracked, reviewed, and pressured the gender jurisprudence of these bodies. We see invocations of SCR 1325 in support of ICF agendas within the bureaucratic apparatus of donors, international NGOs, and multilateral agencies such as the UN and the European Union that shape funding lines, justice, and rule-­of-­law initiatives and development projects. Such invocations reflect an ICF vision that has become the normative common sense regarding gender in conflict and postconflict environments. The gendered subject who emerges from war and conflict in these policy depictions is represented as a particular kind of object of knowledge—­classically, women both vulnerable and disempowered. However, in contrast to the therapeutic and prosecutorial sensibility that has accompanied the ICF approach to sexual violence, the dominant ICF sensibility in relation to economic devastation has been optimism and resilience. For instance, in dealing with sexual violence. ICF has framed sexual violence as “as one of the world’s most vicious crimes, destroying individual lives and terrorizing communities” and

518

Vasuki Nesiah

has championed an agenda that states, “the full force of international order will be brought to bear to ensure accountability” for sexual violence.74 In contrast, economic empowerment has often been framed as a process of unlocking latent potential, where women get to be “key drivers of economic growth.”75 Rather than a focus on victimhood and harm alone, the emphasis has also been on agency and resilience—­on women as economic actors. Both sides of the ICF woman work in tandem, even when apparently in tension; indeed, the backdrop of victimization gives added moral impetus to policy initiatives advancing empowerment. One example of this is the 2010 Secretary General’s report “Women’s Participation in Peace Building” (following relevant Security Council Resolutions, from SCR 1325 to SCR 188976), which noted that there was “unprecedented support in the international community for robust action to ensure women’s full participation in peacebuilding.”77 This report outlined a seven-­point action plan that included measures to “capitalize on women’s productive potential and ensure their economic empowerment.”78 Significantly, women’s agency is framed against a background habitus of victimhood (as, by default, the gendered experience of conflict)—­thus, the “potential” emerges as all the more precious and warranting that much greater investment in empowerment. The knowledge economies that attach to the representation of the postconflict woman as vulnerable but also resilient facilitate interventions that shape and regulate, through discourses of accountability, recovery, and empowerment, accountability for sexual violence in war, recovery from war-­related atrocities, and empowerment in peace processes and postconflict reconstruction efforts. The focus on property, credit, and entrepreneurship as routes to empowerment gains particular traction in the context of postconflict development policy. For instance, postconflict contexts are seen as presenting “an historic opportunity to support gender-­equal property and inheritance ownership and control” because “post-­conflict reconstruction often involves sorting out property ownership, including law-­ making around property rights and privatization.”79 Privatization of state land and property law measures creating or entrenching fungible individual title have been a cornerstone of neoliberal economic development initiatives across the world, but the widespread displacement and destruction of war-­torn countries have offered their advocates particularly fertile ground to lay a new foundation for free market

Indebted

519

activity by entrenching individual property rights. In a similar vein, in postconflict contexts, microcredit has been advocated for as a route to poverty reduction, conflict mitigation,80 and equality.81 Accordingly, mainstreaming gender into financial services, and particularly access to credit, has become a critical focus of feminist approaches in postconflict contexts.82 Finally, against a dominant story of women as victims of war,83 postwar economic policy is advanced as opening the possibility of a new dawn for exercising women’s agency. Indeed, female entrepreneurship has been heralded as a peace-­building tool, with donor programs aimed at trade between women across ethnic lines and market activity equated with reconciliation. Transitional contexts have been advanced as offering particularly hospitable ground for the notion of an empowered female economic actor who can attain economic emancipation by navigating the market in ways that are autonomous of context, culture, and background socioeconomic conditions. These three anchors of empowerment feed into each other—­titled property ownership is promoted as enabling collateral to support credit access; similarly, access to credit is promoted as critical for women’s economic agency and self-­reliance as entrepreneurs driving market-­ oriented economic recovery. Moreover, striking new synergies have fueled this momentum among policymakers, donors, international agencies, and NGOs. For instance, the Hernando de Soto approach to housing and credit84 has come together with decentralized, participatory development approaches in ways that echo the language of entrepreneurship as well as the language of grassroots democratization. The feminist interventions that have been mainstreamed into dominant postconflict economic reconstruction programs have been those most easily assimilated into policies aimed at market-­oriented growth and integration of postconflict economies into global markets.85

Governance Feminism in a Zone of Convergence: Postwar Sri Lanka The thirty-­year civil war in Sri Lanka ended in 2009. Postwar Sri Lanka quickly emerged as a magnet for various recovery and reconstruction initiatives. These initiatives were shaped by various policy traditions, including neoliberal development theory and feminism. The feminist

520

Vasuki Nesiah

insights that we saw most prominently were those that emerged from feminist development work, with the added inflection of ICF. Feminism was articulated in “governance” through these converging and intertwined traditions. Thus, postwar Sri Lanka and the housing reconstruction project, ODHA, offers a particularly rich terrain to examine the dynamics of GF—­a nd in this particular case, to examine how GF became attached to debt regimes. Sri Lanka has a long feminist tradition86 and many indicators of women’s “well-­being” in social development parlance.87 However, over the years there has been much discussion about how the celebrated social development indicators regarding gender equality understate women’s “disempowerment.”88 This focus on empowerment gets heightened with the focus on conflict, with much discussion of female-­ headed households, war widows, and women’s particular economic precarity in conflict and postconflict environments. With the passage of SCR 1325 in 2000, it is ICF, and its investment in the dominant governance paradigms, that shaped the international development and human rights community’s approach to gender analysis and proposed policy interventions when engaging with Sri Lanka.89 The discussion of Sri Lanka in the 2003 International Alert study, “UNSC Resolution 1325: South Asian Women’s Perspectives,” and the 2012 Civil Society Monitoring Report on SCR 1325 are typical of such engagements. For instance, the Civil Society Monitoring Report describes the situation of war widows as particularly vulnerable to poverty and social exclusion. Women have also lost their jobs, land, business and sources of livelihood. However, women have been largely excluded from decision-­making mechanisms in reconstruction processes. In addition, the lack of women-­friendly institutional norms and the abundance of men-­driven procedures and services together with the marginalization of women’s rights to land ownership and livelihood opportunities have increased women’s vulnerability. Limited access to resources, lack of skills, markets and income are some of the contributing factors delaying early recovery in post-­conflict situations.90

Thus, there was a slippage from a description of the goal as empowerment to a discussion of the solution as inclusion into the market. The

Indebted

521

connection is even tighter in the analysis advanced by the International Civil Society Action Network for Women’s Rights, Peace, and Security (ICAN). ICAN, an organization that seeks to integrate SCR 1325 into development planning, recommended in 2013 that economic policy in the region be directed to “increase and facilitate women’s access to credit, skills and extension services,” including efforts to “develop women’s entrepreneurship programs with access to credit and marketing.”91 This SCR 1325–­driven emphasis on gender dimensions of the postwar economy and attendant criticism of immediate postwar policies for deprioritizing or even heightening women’s economic precarity have been heard by some of the most important actors defining donor agendas and economic governance priorities. With much discussion of the feminization of poverty in postwar economies, many of the income-­generation projects launched in the postwar regions have targeted women.92 In this spirit, the World Bank says that there is an “exacerbation of gender inequality in fragile and conflict-­a ffected situations” that requires initiatives that “boost women’s agency and economic opportunity simultaneously.”93 The Bank goes on to cite access to title, credit, and entrepreneurship as key elements for empower­ ment that combine that dual focus on agency and opportunity. The development field has conceived and designed a series of indices of women’s empowerment that incorporate these elements, such as the Gender Global Entreprenurship and Development Index, the WEVentureScope of the Economist Intelligence Unit, the Multilateral Investment Fund, and the Women’s Economic Opportunity Index of the Economist Intelligence Unit.94 In this vein, the field of postconflict development assistance has also generated a knowledge apparatus that normalizes these assumptions. For instance, the World Bank has developed a tool kit on encouraging female entrepreneurship that includes “how to” modules95 and advice on “best practices”96 and published reports offering policy advice on strengthening women-­owned firms through individual property rights and access to credit services.97 An earlier FAO study on “Rural women in Sri Lanka’s post-­conflict rural economy” noted that there had been a dramatic decline in socio-­ economic indicators for rural women.98 In another recent study of women in war-­a ffected regions of Sri Lanka, “financial instability” is described as “foremost” among “the most pervasive economic, physical

522

Vasuki Nesiah

and psycho-­social vulnerabilities that female heads of households (FHHs) in the north face in the post-­war context.”99 The study highlights insecure housing as a critical dimension of this problem.100 Indeed, the study describes the government’s focus on large-­scale infrastructure reconstruction as itself a manifestation of a patriarchal budgetary bias.101 Against this backdrop, the rest of this section analyzes one of the programs implemented in Sri Lanka, namely, postwar housing reconstruction, that was shaped by an ICF analysis of the problem and the solution. This analysis in turn built on the structural adjustment–­ inflected approaches to empowerment to development. In the convergence of these various traditions of feminism and development policy, the housing programs implemented in Sri Lanka allow us to track how Governance Feminism unfolded in the details of a development program.

Owner-­Driven Housing International agencies shaped by the Washington Consensus have women’s integration into the market as a central policy commitment; accordingly, many of these agencies sponsored entrepreneurship programs in the name of promoting gender equality. ODHA programs within the postwar regions of Sri Lanka provide a window into how such policy commitments have unfolded within the terms of a specific programmatic initiative. ODHA, microcredit schemes, and entrepreneurship initiatives unfolded as parallel and mutually reinforcing policies that recognized and invested in women’s agency. These projects were undertaken by an array of actors, including the Sri Lankan government, international donor agencies, UN agencies, international NGOs, and NGOS. Feminist influence shaped the discourse on the empowered female subject as the target of these policy interventions and offered a redemptive framework for key elements of market-­friendly postwar economic reconstruction programs. In 2009, after a thirty-­year civil war,102 Sri Lanka files moved from the desks of conflict resolution experts to the desks of postconflict recovery experts. This reclassification signaled a range of discursive shifts—­from the realm of “extraordinary crisis” to the realm of “crisis ordinariness,” from knowledge of woman as the victim of war to knowledge of woman as the agent of reconstruction.103 One critical

Indebted

523

dimension of the postwar landscape has been a massive investment in the physical infrastructure of the country—­including the rebuilding of the housing stock in the northern and eastern regions of the country that were the primary war zone for much of those three decades. Development experts saw housing as a lynchpin to address many dimensions of the war—­from internal displacement to economic recovery. In a 2014 report, UN-­Habitat estimated that over 160,000 houses were destroyed and 330,000 people were internally displaced, and the majority of them were living in camps for the displaced.104 The ODHA program was an effort to address this housing crisis. It is the product of a collaboration between the government of Sri Lanka; donor countries such as India (which is funding the largest such project), Australia, and members of the European Union; and multilateral agencies such as the World Bank and UN-­Habitat.105 ODHA had the promise of being responsive to community needs and was driven by a participatory model of housing reconstruction.106 However, ODHA was accompanied by its own complexities and unintended outcomes. These complexities and unintended outcomes are the focus of this section. ODHA sought to engender postconflict reconstruction and economic recovery in previously war-­torn regions of Sri Lanka, through seed grants (of approximately half a million rupees) for individual home building; the grant was disbursed in installments through the course of the building program.107 Homeowners were expected to contribute their labor, oversight of the home building, and any supplementary costs incurred by housing plans that went beyond the prototype.108 Recipients were residents in war-­torn areas whose homes had been destroyed. As the UN-­Habitat report on this housing programs describes it, “Vulnerable groups including female headed households, elderly homeowners and the disabled were given priority assistance.”109 Donors based their grants on meeting almost full costs of a model home—­a prototype they developed in consultation with the Sri Lankan government.110 While the ODHA grant was calculated on the basis of this predetermined prototype of a two-­bedroom house, households were permitted to go beyond that prototype if the homeowners were able to galvanize supplementary sources of funding. Most households sought to supplement the ODHA seed grants by taking advantage of financial instruments (including microcredit schemes) offering (and

524

Vasuki Nesiah

encouraging) credit or have taken advantage of schemes encouraging entrepreneurial activities for income generation. Owner-­d riven housing entered the international donor repertoire not as a neoliberal policy but as a populist, participatory development initiative undertaken in Latin America in the 1960s.111 For many decades, community development advocates in many parts of the world pushed against top-­down housing programs. In the decades following Bretton Woods, multilateral institutions such as the World Bank, donor agencies such as USAID, and recipient governments across the global South undertook large-­scale infrastructure projects. Many activists and scholars such as Arturo Escobar, James Ferguson, and Wolfgang Sachs criticized these projects as designed and advanced in ways that were calibrated with the interests of the global North and the ideological and disciplinary blinders bred by the development field.112 These blinders included what James Scott has described as the “high modernist” vision of the authoritarian state.113 The tendency to disregard the interests and priorities of the community in whose name these projects were advanced was heightened in contexts of crisis, be it in the aftermath of natural disaster or in conflict and postconflict environments. In such contexts, many development and humanitarian actors legitimized external interventions as a priori, always already helping because the contexts were so dire. Pushing back against this orthodoxy, ODH advocates argued that high modernist development interventions exacerbated the problem and further disenfranchised communities because they were alienating, costly, and unresponsive to local needs. Indeed, Sri Lanka’s postconflict reconstruction efforts have also included top-­down housing programs that have reflected precisely these problems.114

Empowered Development The critique of hierarchically planned programs resonates powerfully with the feminist critique of WID and WAD referenced earlier, in describing the feminist path to “empowerment” as a key goal for development linking socioeconomic transformation to popular participation. Housing was seen as a critical avenue for such empowerment. For instance, postconflict housing policy experts commenting on the Sri Lankan context argue that “Post conflict housing reconstruction can contribute to gender equity and empowerment through minimising the

Indebted

525

difficulties that women face in accessing housing reconstruction assistance”; by “using capacities that women have gained during the conflict in post conflict interventions,” they urge that “post conflict housing reconstruction can promote the participation of women in planning, designing and constructing homes.”115 Just as feminists such as Gita Sen were seeking to foreground women as the agents of change, not as the targets of policy, ODH advocates were seeking to foreground homeowners as empowered architects of their housing rights, not beneficiaries of government largesse. Gradually, ODH proposals gained traction even among the classical purveyors of high modernism in the development field. Thus, in 2004 the World Bank adopted owner-­d riven reconstruction as the model for post-­tsunami shelter projects. A 2010 World Bank study of alternative approaches to housing reconstruction advocated for owner-­ driven models as the “the most empowering and dignified approach for households.”116 Like microcredit, ODH emerged among grassroots activists interested in participatory development and creative approaches to leveraging the nonmonetary resources and capacities of the poor (social capital networks in the case of microcredit and knowledge of local conditions and priorities in the case of ODH) and harnessing the capital of banks and donor agencies to optimize yield at the lowest administrative and financial costs. Today, like microcredit, ODH has become part of the policy package of the most powerful development institutions in the world. Moreover, like microcredit, it has proved itself remarkably adaptable to a policy environment shaped by structural adjustment programs and attendant ideas of entrepreneurship and market-­driven growth. Finally, like microcredit, ODH individualized responses to structural problems in a context where neoliberal ideologies were hostile to more transformative and collective approaches.117 Within the dynamics of the market, the individualizing of responsibility and risk exacerbated the economic precarity of “beneficiaries.”118 Moreover, the turn to the local may itself have particular complementarities with neoliberal recipes for economic growth that shaped those conditions of precarity.119 ODH was designed as a policy response to the postwar housing crisis;120 in Sri Lanka, ODH was not unfamiliar because UN-­Habitat and others had used community-­and homeowner-­d riven housing construction for post-­tsunami housing programs.121 In the postwar context,

526

Vasuki Nesiah

feminist humanitarian workers, NGOs, and others foregrounded the postwar gender demographics of household economics as one that needed to shape reconstruction policy. The 2009–­10 Sri Lankan government census reported that 23 percent of households were women-­headed households (WHH). Writing in 2015, researchers at the Center for Poverty Analysis note that “The high number of WHHs has come to occupy a prominent place in development discourse and practice in Sri Lanka’s post-­war context. International organizations, local NGOs and the Government of Sri Lanka are implementing a multitude of development programs, ranging from housing to food aid to livelihood assistance, targeting WHHs as a vulnerable category.”122 This focus inflected many of the development programs that were implemented in the postwar context, so ODHA was conceived as focused not only on providing housing but also empowerment. For instance, in 2014, David Daly, the EU ambassador to Sri Lanka, lauded the work of ODHA for linking the building process to “an array of measures empowering women”—­referring to the owner-­d riven process through which houses were built as well as to other interventions (such as microcredit schemes) that targeted these same group of beneficiaries.123 In a similar vein, the India-­funded program describes its contributions to “empowering conflict affected women” through the Village Reconstruction Committees (VRCs) that allowed for community discussion and oversight over the building process thus: “The Indian Housing Project proactively developed the capacity of conflict affected women. 40% of the leadership positions in VRCs were held by women, enabling active participation in the development of their communities.”124

Prioritizing Women The ODHA program unfolded in the former war zones alongside a range of ICF-­accented, empowerment-­focused interventions.125 In 2011, the Sri Lankan government estimated that there were approximately 60,000 female-­headed households in the most war-­affected regions of the North and East of the country, with some suggestion that the numbers were even greater and that the “data collection process was ongoing.”126 The Lessons Learnt and Reconciliation Commission (LLRC), a government body, highlighted women’s economic precarity, noting in particular that war widows were the “poorest of the poor” and their

Indebted

527

“special needs . . . must be taken into account as a matter of priority.”127 In fact, some international commentators have argued that the government, including the LLRC, was underestimating the burden borne by women: “Large numbers of mostly-­Tamil minority women in the North and East are bearing the brunt of the post-­conflict period. Displaced, widowed, injured and traumatized, many are primary carers for other maimed and traumatized persons in environments, where resources are scarce and security concerns are extremely high.“128 In a 2015 report, the UN office in Sri Lanka recommended that WHHs “require recognition as a group that has specific economic and social vulnerabilities, which warrant very specific interventions” and then recommended that new WHH-­focused projects be implemented in ways that were context sensitive and inclusive.129 In addition to its earlier initiatives, in 2015 the government of Sri Lanka announced “a new initiative for the socio-­economic empowerment of WHHs,” including the establishment of a national committee to make recommendations for action.130 Sri Lankan civil society organizations, such as the Association for War Affected Women and the Center for Women and Development, advocated for economic interventions focused on women’s livelihood and market integration.131 The ODHA program in Sri Lanka needs to be situated in relation to the dual policy agendas highlighted earlier—­postconflict development assistance on the one hand and women’s empowerment on the other. ODHA emerged against this backdrop where there was not only a focus on increased allocation of aid to women but also aid allocation within an “empowerment” framework that made the targeted women drivers of the process. For instance, in a 2014 newsletter, the Sri Lanka branch of the International Committee of the Red Cross (ICRC) reported on an income-­generation program it had initiated with these same communities that reflected a similar philosophy: The ICRC’s response during the recovery phase to those made vulnerable by the conflict was the piloting of a Micro Economic Initiatives (MEI) programme for womenheaded households, people with disabilities and extremely vulnerable households in the Vavuniya district in 2011. The MEI is a programme in which each beneficiary identifies and designs the livelihood for which he or she needs assistance to implement, thereby employing a bottomup needs-­based approach.

528

Vasuki Nesiah

These kinds of initiatives may be seen to respond to calls, arguing that “all post-­conflict assessment should include gender analyses” and entail “mainstreaming women’s involvement and empowerment into macroeconomic programmes.”132 Thus, ODHA can be situated as one of a range of interlinked ICF-­informed policy initiatives mainstreaming women’s involvement and empowerment in postconflict settings. Within the ICF policy vision of economic empowerment, one can see ODHA as ideally structured to serve several goals. In offering housing grants, disbursed through several installments, it allows the recipient to have considerable control over the time frame for housing construction. Relatedly, in focusing on privatized housing rights, it gives recipients a path to individual title—­a lthough ODHA was not directed at women alone, the changing demographics of the postwar context meant that female-­headed households were among the most important recipients.133 Women’s access to property title is a particularly significant priority in the ICF policy vision and has synergy with a broader focus on the privatization of assets by international financial institutions and development agencies. In addition, housing was seen as significant in offering collateral for women’s access to credit. Thus, discourse on the needs of female-­headed households and the vulnerability of war widows has been accompanied by an investment in female economic empowerment such that “these women should be looked at not only as recipients of aid but also as participants in the development and reconciliation process.” 134 As elaborated in this chapter, to understand the story of how this ICF approach to empowerment got traction (became an instance of GF, in other words), one needs to also understand the story of postconflict development policies regarding economic reconstruction.

Indebted Empowerment and Neoliberal Seductions These interlinked policy initiatives of female empowerment and economic reconstruction have engendered a debt-­and-­dispossession cycle. A 2014 study suggested that 85 percent of ODHA households had acquired significant household debt that has already caused or threatened dispossession of key household resources; two-­t hirds of this debt was acquired entirely to supplement the ODHA house-­building grants.135 It is not that ODHA was the singular catalyst for this debt

Indebted

529

but that ODHA in the climate of a range of interventions focused on women’s access to credit and entrepreneurship produced a dynamic that carried its own momentum of debt and precarity. Individual property ownership has also meant individualized property development costs. For the vast majority of “beneficiaries,” the costs have exceeded the ODHA seed grants.136 Thus, ODHA beneficiaries have taken out loans—­both short-­term loans to bridge costs while awaiting the next installment of ODHA grant disbursement and long-­term loans to cover the overall shortfall in total building costs. It is possible that the ODHA program could have worked differently if it had more safeguards to ensure the program did not engender and exacerbate individual financial precarity—­such safeguards may have included better regulation of loans and the terms on which they were dispersed. Instead, what we had was the familiar story of an underregulated financial sector where lenders sought to exploit the desperation for capital by aggressively selling loans to impoverished communities and then imposing extraordinarily high interest rates.137 Banks and other financial service agencies were liberal with credit approvals and encouraged people to take out loans even if the terms of repayment were exorbitant and there was little prospect of secure income to pay back those loans in a timely manner. The financial desperation of prospective debtors made it a creditor’s market; loans eased the short-­term credit crunch while heightening long-­term financial precarity. As one commentator notes, “The interest rates for mortgaged houses were around 120 percent per year. But the war-­affected women try their utmost to repay their loans, leading to low default rates for microfinance in the North. Fear of losing their homes has led to them cutting down on food.”138 Thus, housing precarity and financial precarity compound the precarity of life itself. The majority of debtors have been unable to service their debt without taking out further loans and pawning or sometimes losing valuable family resources. The irony is that this has not led to housing security. Families who lost their homes to shells and mortars in the civil war that engulfed their communities are now at risk of losing their homes to debt and loan payments in what some may describe as an economic war on the poor. As independent scholar Niyanthini Kadirgamr says, “The tragedy is that having resettled quite recently and having lived in their newly built homes only for a few years, they are already vulnerable to becoming homeless and landless again.”139 For these

530

Vasuki Nesiah

households, debt is both enabler and constraint—­in a resource-­ constrained context, debt offers resources that promises to meet basic needs for shelter and livelihood, but the debt and its interest exacerbate resource constraints and fuel the need for even more debt. Thus, for many, spiraling into greater and greater debt has become a way of life—­coping with and compounding the impossibility of everyday life. With the empowerment model ensuring that women were particularly significant “beneficiaries” of postconflict economic policy, a parallel dynamic of debt and dispossession has rendered female-­headed households particularly vulnerable.140 Many development agencies have long thought of access to credit as a key barrier to individual economic empowerment; in this context, microcredit schemes have flourished, particularly microcredit schemes targeting poor women and others seen to have the greatest challenges in accessing credit in favorable terms. The housing schemes often saw microcredit as a complementary adjunct to the housing grants. For instance, in describing the India-­funded project for which it was an implementing agency, UN-­Habitat’s account of the measures taken with the aim of “empowering conflict affected women” include the fact that small savings groups were established in villages, in partnership with the Sri Lanka Women’s Development Services Co-­operative Society Ltd and Helpage Sri Lanka. The membership of these groups were almost exclusively females. The Savings Groups enabled women to access loans at low interest rates for household emergencies and to invest in livelihood activities. Opening joint bank accounts enabled women to play an active, decision making role on allocating the housing grant while providing them access to finances for construction.141

In addition, the postwar period in Sri Lanka has also seen the proliferation of microcredit-­based self-­employment schemes, where women (in particular) are encouraged to become entrepreneurs, by becoming a freelance seamstress for instance, by using microcredit for the initial purchase of the sewing machine or whatever capital investment is needed to get the business off the ground. Yet, here too the profit margins are thin and can barely sustain day-­to-­day life, let alone repayment of loans or supplementing ODHA grants to build a home. Thus, here

Indebted

531

too self-­employment schemes have often led to entrapment in cycles of debt. Entrepreneurship has meant income insecurity for a community that is already grappling with poverty. Women’s empowerment has been mainstreamed into these policies advancing homeownership, access to credit, and entrepreneurship to ensure these policy initiatives reach female beneficiaries; however, this inclusive capitalism has often heightened the precarity of these women and their households. The scheme is based on cruel optimism. Debt overwhelms the everyday lives of these postwar communities as they navigate the “crisis ordinariness” of postconflict economic governance. From household debt to sovereign debt, debt is not a backup option when routine budgets fall short; rather, debt is itself routinized into budgeting.142 The routine attains crisis proportions because of the nested dynamics of debt at different scales—­for instance, Sri Lanka is mired deeply in a sovereign debt crisis143 and has taken out additional loans from the International Monetary Fund, to make payments on its existing loans and supplement existing revenue.144 With over 95 percent of government revenue needed for servicing its existing debts, the country has reduced its expenditure on public goods (such as state constructed housing) and encouraged the role of private financial institutions, and, concomitantly, private household debt.145 Such policies are encouraged by IMF loan conditionalities constraining public spending. The viciously impoverishing debt cycles of these household economies and the proportion of household revenue feeding debt payments mirror how sovereign debt operates for the national economy. Moreover, tracking how the factors shaping the personal debt crisis of individual households is exacerbated by the factors shaping sovereign debt crisis offers a telling window into how dispossession trickles down. Personal debt crisis has its own spread effects catalyzing a chain of additional debt. For instance, impoverishment within Sri Lanka often pushes those who can get contract jobs in the Middle East or elsewhere to send remittances that can help with large expenses such as building houses. In fact, remittances from these workers, primarily domestic workers and construction workers, are the single biggest source of foreign exchange in the country146—­foreign currency that is even more valuable because the structural adjustment entailed currency devaluations of the Sri Lankan rupee. These are grueling jobs under difficult conditions but nevertheless much sought after because of

532

Vasuki Nesiah

remuneration in a stronger currency. Significantly, the recruitment and wage system (known as the Kafala system) for many of these jobs in places like Abu Dhabi require workers to undertake significant debt to pay the employment agency a recruitment fee that they then earn back in monthly increments through their work.147 In recent years, countries such as the United Kingdom have instituted schemes of “visa bonds” for Sri Lankans (and citizens of five other countries) that function as significant financial loans held as security by the visa-­ granting country, to be returned only when the person returns to Sri Lanka; here traveling bodies function as financial tethers to loans structured on the terms of the visa.148 Debt is a technique of governance that shapes and exploits vulnerability; in fact, by enabling immediate survival through deferred credit, it also deepens vulnerability by financializing it. Sri Lanka is not alone in suffering debt as a modality of governance—­ from Detroit to Athens, crisis ordinariness via debt is the order of the day. A 2016 IMF study titled Debt: Use It Wisely found that “the global debt of the nonfinancial sector—­comprising the general government, households, and nonfinancial firms—­is currently at an all-­time high.”149 Margaret Atwood describes debt as being almost like the air we breathe—­it is everywhere.150 Crisis ordinariness is part of the atmosphere. Yet, not everyone is affected by the air in the same way—­t he crisis dimensions of debt condense and diffuse differently for the lender and the borrower, of both household debt and sovereign debt, in the global North and the global South. The Jubilee movement from 2000,151 the critique of debt associated with the Occupy movement from ten years later,152 and international law arguments for the forgiveness of what is referred to as “odious debt”153 are varied touchstones of global struggles against the debt crisis. In Sri Lanka too, as these programs unfolded and the debt crisis intensified, there has been increased momentum in the struggle against predatory lending and microcredit schemes (discussed earlier in this chapter).154 Of particular note here are the marches and protests by women and men in these communities protesting existing microcredit schemes, calling for the state to cap interest rates for future loan programs and organizing cooperatives that spoke to alternative visions of economic futures that strained against their conscription into the “crisis ordinariness” of hegemonic market logics.155 These efforts have had

Indebted

533

some traction with state officials, and the government has announced a jubilee of sorts—­namely, debt forgiveness for women in war-­affected communities with loans of up to 100,000 rupees, and a cap on interest rates for future loans.156 These measures do not constitute long-­term structural change affecting conditions of precarity, but the combination of debt forgiveness and the promise of lower interest rates for future debt is likely to provide immediate and critical relief for the beneficiaries. The cruel ironies engendered by this prolonged crisis are such that debt is both problem and solution; we are reminded again of the difficulty that Berlant describes of detaching from these compromised conditions of possibility. The challenges of debt-­f ueled economies of empowerment are ongoing; however, even the arc of the story in postwar Sri Lanka thus far presses the need for critical reflection regarding GF and the policies it has engendered, intended and unintended. This chapter has sought to analyze the role of GF in the infrastructure of “crisis ordinariness” in environments undergoing postwar economic reconstruction and, concomitantly, to probe the politics of “female empowerment” as mobilized in this context. The affective structure that debt draws on and engenders is shaped in a dialectic between crisis and stability, despair and promise, austerity and consumption, discipline and empowerment; it inflects what we could describe as the “technomoral” appeal of this fusion of “technocratic languages of law and policy with moral pronouncements” that is central to legitimizing GF prescriptions as being “in the public interest.”157 UN-­Habitat’s reports on the housing scheme include profiles of women who were chosen to be recipients of these grants and describe them as “feeling” empowered: “Female headed families, empowered to take charge of the construction of their houses, feel a sense of achievement on completion.”158 Feminist arguments for “empowerment” that claim this affective resonance were integrated with technocratic programs for private sector promotion. Thus fused, these policy commitments ensured that local and global development programs were attached to neoliberal agendas for postwar economic recovery.159 Given that this channeling of many feminisms to neoliberal economic policy led to debt, dispossession, and socioeconomic precarity, we need to understand how feminism came to define empowerment in these terms. In some cases, these paths were unexpected. For instance, the logic of

534

Vasuki Nesiah

microfinance was that it would substitute social capital for financial capital in capital-­scarce communities; however, the commercialization of microfinance instrumentalized social capital and quickly brought it into the logic of capital. In other cases, there were elements of what we may see as feminist political morality, which rhymed with neoliberal agendas. For instance, inclusion, agency, and commitment are elements of the affective glue tethering international conflict feminism to neoliberalism—­the promise of inclusion into the market, agency as a market actor, and a commitment to redemptive citizenship in the postconflict landscape. As this chapter has detailed, neoliberal logics tied to property, credit, and entrepreneurship traveled under the aura of empowerment. In Undoing the Demos, Wendy Brown has argued that the power of neoliberalism is best understood not as economic policies for exploitation and profit but as termite-­like political rationality that renders us all as entrepreneurs: “Neoliberalization is generally more termitelike than lionlike . . . its mode of reason boring in capillary fashion into the trunks and branches of workplaces, schools, public agencies, social and political discourse, and above all, the subject.”160 There is an important resonance here with the path that “empowerment” discourse has traveled, where market logics have integrated with discourses and strategies that articulated dissidence and heterodoxy. The purveyors of economic governance invested in the GF vision of “empowerment” and assimilated its way of knowing and shaping the world.161 The goals, assumptions, and methodologies that attend this approach to empowerment became part of the institutional and symbolic machinery of cruel optimism. Central to the economy of desire here is its mutuality—­GF empowerment and neoliberal development marry agendas and visions through richer and poorer, including richer promises and poorer futures. The policies advanced by the postconflict development apparatus can themselves exacerbate economic vulnerability in postconflict environments. Indeed, as in the cases studied here, the “female empowerment” programs that are lodged in those development policies can be instrumental in those dynamics. In such cases, empowerment is not just an empty promise; rather, it trades in a currency of cruel optimism where the promise of empowerment is part of the very apparatus that disempowers further. The Sri Lankan example draws attention to the

Indebted

535

striking tension between GF’s success in shaping policy (in the name of empowerment) on the one hand and the exacerbation of women’s (and men’s) economic vulnerability (through those very policies) on the other. Moreover, as these policies get normalized into mainstream development policy, the precarity engendered by the legacies of conflict, and exacerbated by hegemonic development policy, becomes a constant, where the development policy apparatus legitimates itself by contrasting its promises with the precarity of war. When “crisis” becomes ordinary in this way, these enabling conditions also become more difficult to challenge—­indeed, this normalization of precarity makes it more difficult to imagine an alternative ordinary. Cruel optimism.

Notes Many thanks to the editors for their detailed comments and to participants in the author workshop convened by the editors in January 2015, particularly to Aziza Ahmed for comments and references to key documents. 1. Lauren Berlant, Cruel Optimism (Durham, N.C.: Duke University Press, 2011). 2. Ibid. Berlant is talking here about optimism as a structure of feeling, not about the experience of optimism. Thus, in her usage, attachment is always optimistic—­ even when it makes us feel miserable. When we invest in something that seems so essential to our notion of the good life but nevertheless thwarts our thriving, she describes that affective structure as “cruel optimism.” 3. Ibid. The notion of crisis ordinariness describes the fact that these clusters of promises, as injurious as they are, continue to structure our ongoing quotidian engagement with the world. Indeed, we have few resources for thinking of other genres of the good life. 4. World Bank Group, Post-­Conflict Reconstruction: The Role of the World Bank (Washington, D.C.: World Bank, 1998); World Bank Group, Female Entrepreneurship: Program Guidelines and Case Studies (Washington, D.C.: World Bank, 2012), http://siteresources.worldbank.org/EXTGENDER/Resources/FemaleEntrepre​ neurshipResourcePoint041113.pdf. The work of the World Bank’s Fragility, Conflict, and Violence Unit and the Female Entrepreneurship Resource Point (with its training modules on topics such as “why gender matters” and “what change looks like”) advances this integration of female empowerment and neoliberal agendas. 5. The program is complex and administered and funded through different donor networks: “The largest commitment has been made by the Indian Housing Programme, followed by the completed North and East Housing Reconstruction Programme funded by the World Bank, and the AusAid/ European Commission/ Swiss Agency for Development and Cooperation co-­financed Support to Conflict-­Affected Persons through Housing in Sri Lanka project.” Kulasabanathan Romeshun,

536

Vasuki Nesiah

Vagisha Gunasekara, and Mohamed Munas, Life and Debt: Assessing Indebtedness and Socio-­Economic Conditions of Conflict Affected Housing Beneficiaries in Jaffna, Kilinochchi and Mullaitivu Districts (Colombo: Centre for Poverty Analysis, 2014), 24 (hereafter referred to as CEPA 2014). UN-­Habitat and the Sri Lankan government have been involved with the whole process. UN-­Habitat, Planning and Design for Sustainable Urban Mobility: Global Report on Human Settlements (Nairobi: UN-­ Habitat, 2014), http://unhabitat.org/books/planning-and-design-for-sustainable​ -urban-mobility-global-report-on-human-settlements-2013/; United Nations Human Settlements Programme, Conflict Damaged Housing Programme, Commitment and Progress Review as of 30th June, 2013 (Colombo, Sri Lanka: UN-­Habitat, 2013). 6. This chapter does not study the other major housing program—­one that describes its goals as the provision of housing, not housing plus empowerment—­namely, the contract granted to the multinational steel company Arcelor Mittal to build 65,000 houses. The Mittal project has been even more controversial than ODHA for reasons highlighted in this report by Niyanthini Kadirgamar, a researcher who has been pivotal in tracking and analyzing both the housing crisis and the microfinance crisis: “Building 65,000 Houses and the Economics of Reconstruction,” Daily Financial Times, April 4, 2016, http://www.ft.lk/article/534700/Building-65-000-houses​ -and-the-economics-of-reconstruction. 7. Stephan Klasen, “UNDP’s Gender-­Related Measures: Some Conceptual Problems and Possible Solutions,” Journal of Human Development 7, no. 2 (2006): 243–­74, http://dx.doi.org/10.1080/14649880600768595. 8. United Nations, “Millennium Development Goals and Beyond 2015,” http:// www.un.org/millenniumgoals/gender.shtml. 9. United Nations, “Sustainable Development Goals,” https://sustainabledevel​ opment.un.org/?menu=1300. 10. United Nations Development Programme, “Women’s Economic Empowerment,” http://www.undp.org/content/undp/en/home/ourwork/povertyreduction /focus_areas/focus_gender_and_poverty/women_s_economicempowerment.html. 11. In North America, some of the more noted feminist economic analysis was published in the late 1960s, such as Margaret Benston, “The Political Economy of Women’s Liberation,” Monthly Review 21, no. 4 (1969), https://doi.org/10.14452 /MR-021-04-1969-08_2; and Betsy Warrier, “Housework: Slavery or Labour of Love,” in Radical Feminism, ed. Anne Koedt, Ellen Levine, and Anita Rapone (New York: Quadrangle Books, 1973), 208–­12. For some recounting of this early history, see the tribute to Benston’s work by Angela Miles, “Margaret Benston’s ‘Political Economy of Women’s Liberation,’ International Impact,” Canadian Women’s Studies 13, no. 2 (1993), http://cws.journals.yorku.ca/index.php/cws/article/view /10447/9536. A critique of development economics dogma was already being made in the UN and elsewhere. The UN Economic Commission of Europe (ECE) was established in 1947 in the early days of the UN. The ECE was to encourage transnational economic cooperation. With Gunner Myrdal as its first executive secretary, it also played a role in the evolution of development economics. Myrdal hired the Danish socialist feminist economist Ester Boserup for the Geneva office of the ECE in 1947 and then for a research project in India in 1957. Boserup’s work had a massive influence on feminist development economics. Irene Tinker, “A Tribute to Ester

Indebted

537

Boserup: Utilizing Interdisciplinarity to Analyze Global Social Change,” lecture, Cornell University, Ithaca, N.Y., March 2001, http://irenetinker.com/publications​ -and-presentations/ester-boserup. 12. Ester Boserup, Woman’s Role in Economic Development (London: George Allen & Unwin, 1970), was the most influential work in the early gender and development field. On the basis of her experience with development programs in India and Senegal, Boserup argued that dominant models underestimated women’s role in development. B. L. Turner and Marina Fischer-­Kowlaski, “Ester Boserup: An Interdisciplinary Visionary Relevant for Sustainability,” Proceedings of the National Academy of the Sciences of the USA (PNAS) 107, no. 51 (2010): 21963–­1965, http:// www.pnas.org/content/107/51/21963.full. 13. Eva M. Rathgeber, “WID, WAD, GAD: Trends in Research and Practice,” Journal of Developing Areas 24, no. 4 (1990): 489–­502. 14. Gita Sen and Caren Grown, Development, Crises, and Alternative Visions: Third World Feminist Perspectives (New York: Monthly Review Press, 1987). 15. Irene Tinker, “Women’s Economic Roles and the Development Paradigm,” Irine Tinker (blog), http://irenetinker.com/text-of-recent-articles/womens-economic​ -roles-and-the-development-paradigm. 16. For instance, this is the argument of Collins Nwabunike, “The WID, WAD, GAD Approach on Gender Development,” CN2COLLINS (blog), March 19, 2013, https://cn2collins.wordpress.com/2013/03/19/the-wid-wad-gad-approach-on​ -gender-development/. 17. Srilatha Batliwala, “The Meaning of Women’s Empowerment: New Concepts from Action,” in Population Policies Reconsidered: Health, Empowerment and Rights, ed. Gita Sen, Adrienne Germin, and Lincoln C. Chen (Cambridge, Mass.: Harvard University Press, 1994), 127–­38. 18. Alexandra Pittman, Fast-­Forwarding Gender Equality and Women’s Empowerment? Reflections on Measuring Change for UNDP’s Thematic Evaluation on Gender Mainstreaming and Gender Equality 2008–­2013 (New York: United Nations Development Programme, 2014), http://web.undp.org/evaluation/documents/arti​ cles-papers/occasional_papers/Occasional%20Paper_Gender_Pittman%20.pdf. 19. Convention on the Elimination of All Forms of Discrimination against Women, http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm. 20. Pittman, Fast-­Forwarding Gender Equality. 21. N-­gram is a useful tool in charting when a term (such as “empowerment”) becomes a buzzword in relevant fields (such as development). An n-­gram comparison of “international development,” “women in development,” and “women’s empowerment” shows that “international development” has a long history, but “women in development” had purchase from the early 1960s, and it is only in the mid-­1980s that “women’s empowerment” got traction. Moreover, while “women in development” peaked in the early 1990s, “women’s empowerment” continues to rise at the same rate as international development—­apparently now a mainstreamed part of the development policy apparatus. See https://books.google.com/ngrams with the search for English-­language books from 1950 to 2008 to graph and compare the following three search terms: “women’s empowerment,” “international development,” and “women in development.” 

538

Vasuki Nesiah

22. Women’s World Conference, The Third World Conference on Women to Review and Appraise the Achievement of UN Decade for Women and NGO Forum, http:// www.5wwc.org/conference_background/1985_WCW.html. 23. Development Alternatives with Women for a New Era, https://www.dawnnet​ .org/feminist-resources/about/main. A platform for a feminist approach to development by DAWN economists Gita Sen and Caren Grown was presented at the Nairobi conference. The ideas circulated and discussed at Nairobi were later published. Sen and Grown, Development, Crises, and Alternative Visions. 24. Anne-­Emmanuèle Calvès, “Empowerment: The History of a Key Concept in Contemporary Development Discourse,” Revue Tiers Monde 4/2009, no. 200 (2009), http://www.cairn-int.info/article-E_RTM_200_0735-  -empowerment-the-history​ -of-a-key-concept.htm. 25. The Fourth World Conference on Women, “Beijing Declaration and Platform for Action,” September 15, 1995, http://www.un.org/womenwatch/daw/beijing/pdf /BDPfA%20E.pdf. 26. United Nations Population Information Network, “Guidelines on Women’s Empowerment,” http://www.un.org/popin/unfpa/taskforce/guide/iatfwemp.gdl​ .html. 27. Ibid. 28. Gita Sen, “Empowerment as an Approach to Poverty,” background paper to the 1997 Human Development Report. Six of the background papers, including the Gita Sen article cited here, were published as Human Development Papers 1997: Poverty and Human Development (New York: Human Development Report Office, United Nations Development Program, 1997). 29. United Nations, Transforming Our World: The 2030 Agenda for Sustainable Development (New York: United Nations, 2015), https://sustainabledevelopment.un.org​ /post2015/transformingourworld. 30. Sanam N. Anderlini and Judy El-­Bushra, “Post Conflict Reconstruction,” in Inclusive Security, Sustainable Peace: A Toolkit for Advocacy and Action (London: Hunt Alternatives Fund and International Alert, 2004), 51–­68, http://siteresources​ .worldbank.org/INTMNAREGTOPGENDER/Resources/Post_conflict.pdf. 31. Thus, the same World Bank Group report on postconflict reconstruction cited in note 4 frames its approach accordingly: “Ultimately effective and sustainable reconstruction is largely determined by the commitment and capacities of local populations, including national government and civil society, to maintain the process.” 32. United Nations Women, “Women’s Empowerment Principles,” http://www.un​ women.org/en/partnerships/businesses-and-foundations/womens-empowerment -principles. 33. Ana Revenga and Sudhir Shetty, “Empowering Women is Smart Economics,” Finance & Development 49, no. 1 (2002), http://www.imf.org/external/pubs/ft/fandd​ /2012/03/revenga.htm. 34. The World Bank, A Roadmap for Promoting Women’s Economic Empowerment, http://www.worldbank.org/en/events/2014/04/21/roadmap-for-promoting​ -womens​-economic-empowerment. 35. Thus, by 2014 the party even came to the shores of the United States, such that even the New York Times marveled at the “Rise of Conferences on Women’s

Indebted

539

Empowerment.” Christine Haughney and Leslie Kaufman, “The Rise of Conferences on Women’s Empowerment,” New York Times, October 6, 2014, http://www​ .nytimes.com/2014/10/06/business/media/womens-conferences-become-a-growing -media-marketing-tool.html?_r=0. 36. For instance, note that the USAID-­partnered program Women’s Leadership in Small and Medium Enterprises (WLSME) sees enabling women’s entrepreneurship as critical to economic growth and gender equality: “Entrepreneurship also provides a means to reduce inequalities among men and women. Women’s increased economic activity results in better bargaining power in the home. In transition economies, entrepreneurship is important from the perspectives of job creation, private sector development, and wealth creation.” Women’s Leadership in Small and Medium Enterprises, “About,” http://wlsme.org/about-wlsme (hereafter abbreviated USAID WLSME). 37. This is UN Women’s strategy to “enhance women’s economic security and rights and reduce feminized poverty. There is a strong focus on ensuring that women benefit from equal rights to property under the law, as well as in actual practice at the grassroots level.” UN Women: Asian and the Pacific, “Women’s Land and Property Rights,” http://asiapacific.unwomen.org/en/focus-areas/women-poverty-economics /women-s-land-property-rights. 38. Sri Mulyani Indrawati, “A New Strategy to Address Gender Inequality,” World Bank, Voices (blog), December 16, 2015, http://blogs.worldbank.org/voices/new​ -strategy-address-gender-inequality. The author describes the World Bank’s Gender Equality Strategy to argue that, “One area where we can reduce the cost of gender inequality is by expanding access to finance. Women are barred in some countries from opening bank accounts or lines of credit and often don’t own the kind of property that banks request as collateral.” 39. USAID WLSME. 40. Mayra Gomez and D. Hien Tran, “Women’s Land and Property Rights and the Post-­2015 Development Agenda,” Official Background Paper on Addressing Inequalities, Global Thematic Consultation, October 2012, http://globalinitiative-escr​ .org/wp-content/uploads/2012/10/28102012-FINAL-Inequalities-Paper-on-Womens -Land-and-Property-Rights-GI___.pdf. 41. In many cases, the possessive individualist model of property rights is equated with property rights as such with little consideration of alternative approaches to property rights. For instance, another theory moves seamlessly from de Soto’s argument for private, formal title to “promoting women’s equal access, control, and ownership of land and property” as if “ownership” cannot itself mean a range of different things. Kanika Mak, “Engendering Property Rights: Women’s Insecure Land Tenure and Its Implications for Development Policy in Kenya and Uganda,” Journal of Public and International Affairs 16 (2005), https://jpia.princeton.edu/sites/jpia /files/2005-7.pdf. For one development of alternative approaches to property, see Joseph W. Singer, “The Reliance Interest in Property,” Stanford Law Review 40, no. 3 (1988): 611–­751. See also C. B. MacPherson, The Political Theory of Possessive Individualism: Hobbes to Locke (Oxford: Clarendon Press, 1962). 42. John Gravios, “The De Soto Delusion,” Slate, January 29, 2005, http://www .slate.com/articles/news_and_politics/hey_wait_a_minute/2005/01/the_de_soto​

540

Vasuki Nesiah

_delusion.html. For instance, in Cambodia and elsewhere, long-­term squatters lost their homes within months of a formal titling program, which suddenly rendered land they had occupied for several years more commercially attractive; squatters soon found that they were pushed out, by fair means and foul, by those who were in a financial position to see titling as producing a business opportunity rather than just somewhere to live. Indeed, in most contexts, programs for formal commodifiable title have resulted in the gentrification of slums. 43. In Sri Lanka, the Movement for Land and Agricultural Reform (MONLAR), an organization of agricultural labor, protested the government’s 2003 Land Ownership Bill (the bill aimed to grant freehold title; the government’s proposed legislation was itself inspired by the World Bank’s titling program) because MONLAR predicted it would lead to dispossession. Many of its members worked on small family farms their parents or grandparents had procured in the 1930s through state distribution of restricted land grants that allowed them to farm the land but not sell the land; they did not make significant profit and were not allowed to consolidate farms but they made enough to sustain themselves. They determined that the food, housing, and labor security they could rely on while operating in a subsistence economy would be threatened if the restrictions were removed and individualized commodification thrust them into the market economy. See Tharuka Dissanaike, “Sale or Sell Out? Sri Lanka’s Framers and Land Reform,” Panos London Illuminating Voices, March 3, 2006, http://panoslondon.panosnetwork.org/features/sale-or-sell-out​-sri​ -lankas-farmers-and-land-reform/. 44. Critical evaluations of Margaret Thatcher’s Right to Buy program that privatized council housing is also relevant. For instance, see Stuart Hodkinson, Paul Watt, and Gerry Mooney, “Introduction: Neoliberal Housing Policy—­Time for Critical Re-­ Appraisal,” Critical Social Policy 33, no. 1 (2013): 3–­16. 45. Hernando de Soto, “Legal Empowerment,” World Justice Project (blog), August 17, 2012, http://worldjusticeproject.org/blog/hernando-de-soto-legal​-empowerment. 46. Hernando de Soto, The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else (London: Bantam Press, 2000). The book argued that formalizing individual property title was critical to addressing impoverishment and integrating poor communities into market economies. As one of the theorists shaping the Washington Consensus, De Soto has been pivotal in successfully pushing for neoliberal policies in his native Peru (during Alberto Fujimori’s presidency), as well as in Egypt, Haiti, El Salvador, South Africa, and a range of other countries. Celebrating his work in ways that echo the World Bank and the IMF, the Economist describes The Mystery of Capital as “the most intelligent book yet written about the current challenge of establishing capitalism in the developing world.” See Jeremy Cliff, “Hearing the Dogs Bark,” Finance & Development 40, no. 4, https://www.imf.org /external/pubs/ft/fandd/2003/12/pdf/people.pdf. 47. “‘Where Does the End of Poverty Begin?’ A Discussion with Hernando de Soto,” Forum Convergences 2015, Le Monde’s Great Debate, http://www.conver gences.org/w p-content/uploads/2014/11/Where-does-the-end-of-poverty -begin.pdf. 48. For instance, see Kerry Rittich, Recharacterizing Restructuring: Law, Distribution and Gender in Market Reform (The Hague: Kluwer Law International, 2002).

Indebted

541

49. Klaus W. Deininger, Land Policies for Growth and Poverty Reduction, (Washington D.C.: World Bank and Oxford University Press, 2003), xxix. 50. For instance, the argument of Bethany Martin-­Breen of the Rockefeller Foundation reflects this vision of development and gender—­a vision common in the donor community and development agencies: “Today, over 1 billion urban women in developing countries lack the ability to fully exercise property rights and, as a result, lack formal land titles and savings accounts.” Bethany Martin-­Breen, “In the Developing World, Property Rights for Women Are about More Than Just Housing,” The Rockefeller Foundation (blog), November 5, 2014, https://www.rockefellerfoun​ dation.org/blog/developing-world-property-rights-women/. 51. The report relies particularly on De Soto, The Mystery of Capital, and his short article, Hernando de Soto, “The Missing Ingredient: What Poor Countries Will Need to Make Their Markets Work,” Economist 328, no. 7828 (1993), http://www.housing​ finance.org/uploads/Publicationsmanager/9406_Dev.pdf. 52. For instance, this is the approach taken by Kanika Mak in her discussion of feminist economists, such as Bina Agarwal, Elissa Braunstein, and Nancy Folbre. Mak, “Engendering Property Rights.” Agarwal, Braunstein, and Folbre emphasize the need for gender analysis of property rights. This can be in tension with a possessive individualist approach to property rights in many cases, but for Mak the former leads to the latter. See Bina Agarwal, A Field of One’s Own: Gender and Land Rights in South Asia (New York: Cambridge University Press, 1994); Elissa Braunstein and Nancy Folbre, “To Honor and Obey: Efficiency, Inequality, and Patriarchal Property Rights,” Feminist Economics 7, no. 1 (2001): 25–­4 4. 53. For instance, note that the World Bank’s public–­private initiative has developed a range of tools for mainstreaming gender in areas that range from education to water and infrastructure management. See World Bank, “Gender & Education Projects,” http://ppp.worldbank.org/public-private-partnership/ppp-sector/gender​ -impacts-ppps/mainstreaming-gender-sector-specific-materials/education/main​ streamin (last modified August 7, 2016); World Bank, “Gender & Water and Sanitation Projects,” http://ppp.worldbank.org/public-private-partnership/ppp-sector​ /gender-impacts-ppps/mainstreaming-gender-sector-specific-materials/water​ /mainstreaming-ge (last modified August 7, 2016). 54. Arguably, the policy stake here is not only privatization but neoliberal policies more generally—­for instance, much of the effort (by feminist watchdog groups such as Gender Action as well as gender units within development agencies) to mainstream gender in initiatives advanced by the World Bank or IMF is addressing all their development programs. For instance, see Elaine Zuckerman and Ashley Garrett’s audit of over two hundred poverty reduction strategy papers for the NGO Gender Action. Elain Zuckerman and Ashley Garrett, “Do Poverty Reduction Strategy Papers (PRSPs) Address Gender? A Gender Audit of 2002 PRSPs,” Gender Action Publication, http://www.sarpn.org/documents/d0000306/P306_PRSP_Gender.pdf. 55. George Brown, “When Small Is Big: Microcredit and Economic Development,” Technology Innovation Management Review, November 2010, http://timreview​ .ca/article/392. 56. World Bank Poverty Reduction and Economic Management Network, PremNotes (Washington, D.C.: World Bank, 1998), 2, 4, http://www1.worldbank.org/prem​ /PREMNotes/premnote8.pdf.

542

Vasuki Nesiah

57. Ibid., 2 58. There has been much critical work on microcredit that has illuminated its complexity and challenged the myths surrounding its circulation as a poverty alleviation model within what Dyal-­Chand refers to as the “Western Development Community.” See Rashmi Dyal-­Chand, “Reflection in a Distant Mirror: Why the West Has Misperceived the Grameen Bank’s Vision of Microcredit,” Stanford Journal of International Law 41, no. 2 (2015): 217; see also Emily Shepard, “Situating Micro-­ Finance on a Theoretical Spectrum: The Case of Bolivia,” Atlantic International Studies 3 (2006), https://atlismta.org/online-journals/0607-journal-development -challenges/situating-micro-finance-on-a-theoretical-spectrum/. 59. International Labour Organization, “Promoting Women’s Entrepreneurship Development and Gender Equality, Phase III,” https://www.ilo.org/asia/projects​ /WCMS_099683/lang-  -en/index.htm. 60. Rankin criticizes the cultivation of neoliberal personhood through microcredit schemes in Katharine N. Rankin, “Governing Development: Neoliberalism, Microcredit, and Rational Economic Woman,” Economy and Society 30, no. 1 (2001): 18. 61. However, a glossy photobook produced by UN-­Habitat and AusAid regarding the housing scheme discussed subsequently does present the beneficiaries as happy and proudly empowered by this project. For instance, see “A Home of Our Own: Rebuilding Houses in the North of Sri Lanka,” 2013, 16 http://unhabitat.lk /wp-content/uploads/2015/01/photobookAu1.pdf. 62. I use the term “leaning in” in the title of this chapter as a nod to Sheryl Sandburg’s 2013 book Lean In (New York: Knopf, 2013) as an American popular culture poster child of the individualist feminist agency that this chapter seeks to analyze—­ albeit in the very different context of development projects in postwar Sri Lanka. 63. The eschewing of analysis of structural dimensions of the context and the political consciousness of the actors involved recalls Guha’s description of depoliticizing histories of peasant insurgencies as spontaneous eruptions that “break out like thunderstorms, heave like earthquakes, spread like wildfires, infect like epidemics”; see Ranajit Guha, “The Prose of Counter Insurgency,” in Subaltern Studies No. 2, ed. Ranajit Guha (Delhi: Oxford University Press, 1983), 2. 64. Naomi Klein, The Shock Doctrine: The Rise of Disaster Capitalism (Toronto: Knopf Canada, 2007), 6–­7. As Klein shows, this emerges not only in practice (from Iraq to New Orleans) but also in theory, where “Milton Friedman, grand guru of unfettered capitalism and credited with writing the rulebook for the contemporary, hyper-­mobile global economy,” saw disaster as not only tragedy but also opportunity. “In one of his most influential essays, Friedman articulated contemporary capitalism’s core tactical nostrum, what I have come to understand as ‘the shock doctrine.’ He observed that ‘only a crisis—­actual or perceived—­produces real change.’ When that crisis occurs, the actions taken depend on the ideas that are lying around. Some people stockpile canned goods and water in preparation for major disasters; Friedmanites stockpile free-­market ideas. And once a crisis has struck, the University of Chicago professor was convinced that it was crucial to act swiftly, to impose rapid and irreversible change before the crisis-­racked society slipped back into the ‘tyranny of the status quo.’ A variation on Machiavelli’s advice

Indebted

543

that ‘injuries’ should be inflicted ‘all at once,’ this is one of Friedman’s most lasting legacies.” 65. Vasuki Nesiah, “The Specter of Violence That Haunts the UDHR: The Turn to Ethics and Expertise,” Maryland Journal Of International Law 24, no. 1 (2009): 135–­54. 66. Radhika Coomaraswamy, Preventing Conflict, Transforming Justice, Securing the Peace—­A Global Study on the Implementation of United Nations Security Council Resolution 1325 (2015), 22, 28, http://www2.unwomen.org/-/media/files/un%20 women/wps/highlights/unw-global-study-1325–2015.pdf?vs=323192435. The Security Council and secretary general’s commissioned review of SCR 1325’s impact indicates that “addressing impunity for sexual violence in conflict” has been the central SCR 1325–­influenced agenda in Asia and Africa, and “the participation of women in the security sector” has been the central SCR 1325–­influenced agenda in Europe and the Americas. 67. Ibid., 28. 68. Ibid. 69. Vasuki Nesiah, “Feminism as Counter-­Terrorism: The Seduction of Power,” in Gender, National Security and Counter-­Terrorism: Human Rights Perspectives, ed. Margaret L. Satterthwaite and Jayne C. Huckerby (London: Routledge, 2013), 125–­51. 70. Kelly Askin, “The Power of Women in Advancing the Cause of Gender Justice,” Open Society Foundations, Voices (blog), March 7, 2013, https://www.open​ societyfoundations.org/voices/power-women-advancing-cause-gender-justice. For instance, Askin herself, an influential figure in advancing an ICF agenda in her role as a senior legal office for the Open Society Justice Initiative, cites the following lawyers and judges as critically influential figures in advancing what I call an ICF vision in international and hybrid courts and tribunals: “Judge Gabrielle Kirk McDonald (United States), former president of the ICTY [International Criminal Tribunal for Yugoslavia];  Judge Elisabeth Odio-­Benito (Costa Rica), former Vice-­ President of  ICTY and former judge on ICC [the International Criminal Court]; Judge Navi Pillay (South Africa), former President of ICTR [International Criminal Tribunal for Rwanda], former ICC judge, and current UN High Commissioner for Human Rights; Judge Florence Mumba (Zambia), former Vice President of ICTY, current judge at ECCC [Extraordinary Chambers in the Courts of Cambodia]; Judge Patricia Wald (United States), former judge at ICTY; Louise Arbour (Canada), former Chief Prosecutor of ICTY and ICTR, former UN High Commissioner for Human Rights, current president  of International Crisis Group; Patricia Viseur Sellers (United States and Belgium), former gender crimes specialist at ICTY/R and current  Special Advisor to the ICC Prosecutor; Fatou Bensouda (Gambia), former prosecutor at ICTR, former deputy prosecutor of ICC, current Chief Prosecutor of ICC; Judge Teresa Doherty (Ireland), Judge of the Special Court for Sierra Lone, and  Brenda Hollis (United States), former prosecutor at ICTY, current Chief Prosecutor of SCSL.” 71. I include here feminists who were located within traditional human rights organizations, such as Human Rights Watch (Binaifer Nowrajee, for example) or Amnesty International (for instance, Gita Sahgal, who headed the Amnesty International

544

Vasuki Nesiah

Gender unit from 2003 to 2010), as well as independent activists such as the New York Times columnist Nicholas Kristoff. 72. For instance, scholar-­activists such as Catherine MacKinnon, Betty Murungi, Karima Bennoune, and the late Rhonda Copeland are important feminist scholars who have been particularly significant in advancing research agendas and developing conceptual frameworks in support of ICF agendas in international criminal law and policy and in international human rights and humanitarian law and policy. 73. Significant institutions include groups such as the Women’s Initiative for Gender Justice, which describes itself as “an international women’s human rights organisation that advocates for gender justice through the International Criminal Court (ICC) and through domestic mechanisms, including peace negotiations and justice processes. We work with women most affected by the conflict situations under investigation by the ICC.” Women’s Initiatives for Gender Justice, “Who We Are,” http://4genderjustice.org/. 74. United Nations Security Council, “Sexual Violence in Conflict One of World’s Most Vicious Crimes; Global Community Must Use All Its Tools to End It, Says Secretary-­G eneral in Security Council,” April 17, 2013, http://www.un.org/press /en/2013/sc10977.doc.htm. See Karen Engle, Vasuki Nesiah and Dianne Otto, “Feminist Approaches to International Law” in International Legal Theory, ed. Jeffrey L. Dunoff and Mark A. Pollack (forthcoming). 75. USAID, “Boosting Women’s Economic Growth,” https://www.usaid.gov/what -we-do/gender-equa lit y-a nd-womens-empowerment /addressing-gender -programming/supporting-womens (last modified October 29, 2015). 76. Passed in October 2009, SCR 1889 called for measures to expand women’s participation in peace processes and postconflict initiatives. See “Security Council Urges Renewed Measures to Improve Women’s Participation in Peace Processes, Reaffirming Key Role Women Can Play in Rebuilding War-­Torn Societies,” Security Council Meetings Coverage, October 5, 2009, http://www.un.org/press/en/2009​ /sc9759.doc.htm. 77. United Nations Security Council, “Women’s Participation in Peacebuilding—­ Report of the Secretary-­General,” September 7, 2010, http://docbox.un.org/DocBox​ /docbox.nsf/GetFile?OpenAgent&DS=S/2010/466&Lang=E&Type=DOC, page 18. For the action plan, see United Nation Security Council, “Tracking Progress: 7-­Point Action Plan—­Report of the Secretary-­General on Women’s Participation in Peacebuilding,” http://www.un.org/en/peacebuilding/pbso/pdf/seven_point_action_plan .pdf. 78. United Nations Security Council, “Women’s Participation in Peacebuilding,” 8. 79. Marcia E. Greenberg and Elaine Zuckerman, “The Gender Dimensions of Post-­Conflict Reconstruction: The Challenge in Development Aid—­Research Paper,” UNU-­WIDER 2006, no. 62, https://www.wider.unu.edu/sites/default/files/rp2006-62 .pdf. 80. Stacy Heen, “The Role of Microcredit in Conflict and Displacement Mitigation: A Case Study in Cameroon,” PRAXIS The Fletcher Journal of International Development 19 (2004), http://fletcher.tufts.edu/~/media/Fletcher/Microsites/praxis​ /xix/Heen.pdf.

Indebted

545

81. Horance P. Nagbe, “Promoting Gender Equality in Postconflict Liberia: Challenges and Prospects,” University for Peace, Peace & Conflict Monitor, May 5, 2010, http://www.monitor.upeace.org/innerpg.cfm?id_article=717. 82. Rathiranee Yogendrarajah and Dissanayake Semasinghe, “Women Empowerment through Micro-­Credit—­A Special Reference to Jaffna District,” Journal of U.S.-­China Public Administration 10, no. 3 (2013), https://www.academia.edu /4984508/Women_Empowerment_Through_Micro-credit_A_Special_Reference​ _to_Jaffna_District. 83. Victim discourse also has an empowerment story that is embedded in it—­in fact, recognition of oneself as a victim is itself scripted as empowering (in truth commission processes, for instance). 84. Hernando de Soto, The Other Path: The Invisible Revolution in the Third World (London: I. B. Tauris, 1989); De Soto, The Mystery of Capital. 85. Paul Collier, Women and Structural Adjustment, Unit for the Study of African Economies (Oxford: Oxford University Press, 1989); see also Rankin, “Governing Development,” on the cultivation of the “rational economic woman.” 86. Kumari Jayawardena, Feminism and Nationalism in the Third World (London: Zed Books, 1986). 87. In particular, many key indicators for health and education are equivalent to those of industrial nations. One such indicator is women’s literacy rates of over 90 percent, see Swarna Jayaweera, Hiranthi Wijemanne, Leelangi Wanasundera, and Kamini Meedeniya Vitarana, Gender Dimensions of the Millennium Development Goals in Sri Lanka (Colombo: Centre for Women’s Research, 2007), http://www.undp​ .org/content/dam/srilanka/docs/mdg/Gender_Dimensions%20of%20Sri%20Lanka .pdf. 88. For instance, writing in 2000, Nelathi De Soysa, coordinator of the Strategic Planning Unit for the Sri Lankan office of the international NGO World Vision, wrote that “there is a hidden dimension to the image presented in printed statistics” and that “although the level of gender development in Sri Lanka is higher than average for an Asian country (69%), gender empowerment (compared with modern standards) is relatively low (20%).” Nelathi De Soysa, “The Truth behind Sri Lanka’s Gender Development Statistics,” About Gender (blog), http://aboutgender.blogspot.com/2011/01​ /truth-behind-sri-lankas-gender.html (accessed January 18, 2017). 89. The SCR 1325 framing of the Sri Lankan contexts reflects the broader framing of gender and postconflict economics more generally; for instance, see Greenberg and Zuckerman, “The Gender Dimensions of Post-­C onflict Reconstruction,” 3–­6. 90. Visaka Dharmadasa, Anwar Moledina, and Sophia Hernàndez Reyna, Women Count 2012—­Security Council Resolution 1325: Civil Society Monitoring Report 2012 (Global Network of Women Peacebuilders, 2013), https://www.academia.edu /9205422/Women_County_Security_Council_Resolution_1325_Civil_Society​ _Monitoring_Report. 91. What the Women Say—­Elusive Peace, Pervasive Violence: Sri Lankan Women’s Struggle for Security and Justice (Washington D.C.: International Civil Society Action Network, 2013), 9, http://www.icanpeacework.org/wp-content/uploads /2013/06/Slanka-final.pdf.

546

Vasuki Nesiah

92. Thus, an Inter Press Service (IPS) report on women’s economically precarious situation notes that “Rupavathi Keetheswaran, the top public official in the northern Kilinochchi District, told IPS that single women with families have been targeted for livelihood programmes, including credit for home gardening, self-­employment and the distribution of cattle.” Amantha Perera, “War or Peace, Sri Lankan Women Struggle to Survive,” Inter Press Service, July 10, 2013, http://www.ipsnews.net/2013/07​ /war-or-peace-sri-lankan-women-struggle-to-survive/. 93. World Bank Group, Gender at Work: A Companion to the World Development Report on Jobs (Washington, D.C.: World Bank, 2013), 39, http://documents.world​ bank.org/curated/en/884131468332686103/pdf/892730WP0Box3800report0 Feb-02002014.pdf. 94. Ibid., 28. See also The Gender Global Entrepreneurship and Development Index, http://i.dell.com/sites/doccontent/corporate/secure/en/Documents/Gender _GEDI_Executive_Report.pdf, and Women’s Entrepreneurial Venture Scope, http:// www.gbaforwomen.org/download/womens-entrepreneurial-venture-scope/. 95. World Bank, Female Entrepreneurship: Program Guidelines and Case Studies, http://siteresources.worldbank.org/EXTGENDER/Resources/FemaleEntrepre neurshipResourcePoint041113.pdf. 96. World Bank, “Female Entrepreneurship Resource Point,” http://www.world bank.org/en/topic/gender/publication/female-entrepreneurship-resource ​-point -useful-links-and-tools. 97. Strengthening Access to Finance for Women-­Owned SMEs in Developing Countries (Washington D.C.: International Finance Corporation, 2011), http://www.ifc​ .org/wps/wcm/connect/a4774a004a3f66539f0f9f8969adcc27/G20_Women_Report​ .pdf?MOD=AJPERES. The International Finance Corporation is an organization that is part of the World Bank. 98. Leelangi Wanasundera, Rural Women in Sri Lanka’s Post-­Conflict Rural Economy (Bangkok: Food and Agriculture Organization of the United Nations, 2006), http://www.fao.org/docrep/009/ag114e/ag114e00.htm. This FAO study was developed in the context of the 2002–­2006 peace process that some had (prematurely, as it turned out) declared a postconflict moment. 99. Raksha Vasudevan, Everyday Resistance: Female Headed Households in Northern Sri Lanka (Geneva: Graduate Institute Publications, 2013). 100. “Out of the 65 FHHs interviewed, only six lived in solid/permanent housing structures with locking doors.” Ibid., section 5.3.2, Insecure Housing. 101. “The prioritization of major regional economic projects designed to enlarge the opportunities available in the traditionally male-­dominated ‘public’ sphere, over issues that are seen as falling into the private spheres of inhabited by women (e.g., finding food for the family), and also over the restoration of women’s assets such as housing and land, is a clear depiction of the patriarchal structures that are reinforced by the Sri Lankan state’s actions.” Ibid., section 5.3.2, Insecure Housing. 102. The Sri Lankan conflict is often described as an ethnic conflict pitting the Sinhalese majority against a Tamil minority struggling for anti-­discrimination and linguistic and territorial autonomy rights—­nonviolent struggles over constitutional rights and administrative policy that were eventually overtaken by and channeled

Indebted

547

into a violent separatist struggle led by the Liberation Tigers of Tamil Eelam (LTTE) and a Sinhalese dominated government waging a counterinsurgency war. Yet this does not capture a complex history where questions of interethnic justice intersected with questions of class, gender, religion, and region: multiple fault lines that gave rise to a range of different youth militant movements across the country, including some that may be only tangentially related to the ethnic conflict. Moreover, it does not capture the experience of groups such as the Muslims who suffered at the hands of both the LTTE and Sinhala-­Buddhist militancy and the different pressures of majoritarianism at the provincial versus the national level. It also does not capture how local struggles were caught up in regional dynamics (such as India’s geopolitical agendas for the subcontinent) or global dynamics (such as the U.S.-­led “war on terror” that empowered governments to crush dissent in the name of “counterterrorism”). Finally, it does not capture the extent to which the discussion of the past three decades in terms of the civil war erases other political terrains in Sri Lanka, including arenas of affective and associational life that speak to stakes that are distinct from those addressed by discussions of public policy, constitutionalism, and militarism. 103. Kerry Rittich’s work is pivotal here in situating this dynamic in terms of the international legal architecture. See Rittich, Recharacterizing Restructuring. 104. A Home of Our Own: Rebuilding Houses in the North of Sri Lanka (Nairobi: United Nations Human Settlements Programme, 2014), 7, http://unhabitat.lk/wp​ -content/uploads/2015/01/photobookAu1.pdf. 105. The Center for Poverty Analysis describes the different donor networks and international agencies involved as follows: “The largest commitment has been made by the Indian Housing Programme, followed by the completed North and East Housing Reconstruction Programme funded by the World bank, and the AusAid/ European Commission/ Swiss Agency for Development and Cooperation co-­financed Support to Conflict-­A ffected Persons through Housing in Sri Lanka project”; CEPA 2014, 24. UN-­Habitat and the Sri Lankan government have been involved with the whole process. See United Nations Human Settlements Programme, Conflict Damaged Housing Programme. 106. Indeed, in Sri Lanka, the ODHA project can be contrasted with the other major housing project set in motion postwar—­one undertaken by the Luxembourg-­ based multinational Arcelor Mittal, through a government subcontract to build 65,000 houses. This project has been criticized by local communities and government watchdogs as a top-­down initiative building substandard houses with little input by the ostensible beneficiaries. Kadirgamar, “Building 65,000 Houses and the Economics of Reconstruction.” 107. Indian Housing Project: Rebuilding Homes, Transforming Lives (Nairobi: United Nations Human Settlements Programme, 2015), 19, http://unhabitat.lk/wp -content/uploads/2016/02/UNH-IHP-Publication-Rebuilding-Homes-Transform ing-Lives.pdf; Returning Home: Supporting Conflict Affected People through Housing (Nairobi: United Nations Human Settlements Programme, 2014), 9 , https:// unhabitat.org/books/returning-home-supporting​ - conf lict-affected-people​ -through-housing/.

548

Vasuki Nesiah

108. “Homeowners hired skilled construction workers to rebuild their houses, while the family members provided their own labour support wherever possible. The houses were built according to minimum standards while adhering to Local Authority guidelines. The minimum floor area of each house was 500 square feet. Construction of a sanitary toilet was mandatory.” Returning Home, 7. 109. Ibid. 110. UN-­Habitat is working on at least two large projects (with different funders) undertaken through this participatory owner-­driven model and published reports on these project in 2015 and 2014, respectively. The India-­f unded program involves “Four Implementing Agencies”; these are “UN-­Habitat, the International Federation for the Red Cross and Red Crescent Societies, National Housing Development Authority and Habitat for Humanity”—­all “in close consultation with the Government of Sri Lanka and the beneficiary community”; Indian Housing Project, 4. UN-­Habitat is also taking the lead in the project funded by the Europeans and Australians. Describing their collaboration with the Swiss Agency for Development and Cooperation (SDC) in developing the prototype, UN-­Habitat describe this process as follows: “House plans, taking into account cultural and religious beliefs of the communities, were designed by UN-­Habitat and SDC, while the homeowners had the freedom to modify the plan according to their needs and aspirations.” Returning Home, 19. 111. For instance, the Owner Driven Reconstruction Collaborative situates owner-­ driven housing as an effort to encourage “people led development and disaster reconstruction”; see Hunnarshala Foundation, “ODR Collaborative,” http://www​ .hunnarshala.org/owner-driven-reconstruction-collaborative.html; Jennifer Duyne Barenstein, “The Role of Communities in Post-­Disaster Reconstruction: A Call for Owner-­Driven Approaches,” Tafter Journal, no. 50 (2012), http://www.tafterjournal​ .it/2012/08/01/the-role-of-communities-in-post-disaster-reconstruction-a-call-for​ -owner-driven-approaches/. The current approach to owner-­driven housing in contexts of humanitarian crisis is often associated with the work of John Turner, who advocated for “owner driven reconstruction” in response to the Peruvian earthquake in the 1960s. See Mojgan Taheri Tafti, “Limitations of the Owner Driven Model in Post-­Disaster Housing Reconstruction in Urban Settlements” (working paper, Department of Planning, University of Melbourne, Melbourne, 2012), http://www.iiirr .ucalgary.ca/files/iiirr/B4-3_.pdf. 112. Arturo Escobar, Encountering Development: The Making and Unmaking of the Third World (Princeton, N.J.: Princeton University Press, 1995); James Ferguson, The Anti-­Politics Machine (Cambridge: Cambridge University Press, 1994); James Ferguson, Global Shadows: Africa in the Neoliberal World Order (Durham, N.C.: Duke University Press, 2006); Wolfgang Sachs, The Development Dictionary: A Guide to Knowledge as Power (London: Zed Books, 1992). 113. James Scott, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed (New Haven, Conn.: Yale University Press, 1998). As Scott describes it, this vision combines three elements—­t he aspiration to socially engineer nature and society to improve the human condition, the mobilization of the state to advance that vision, and a prostrate civil society that does not resist this master plan. Scott offers a succinct description of this three-­pronged high modernism: “The ideology of high modernism provides, as it were, the desire; the modern state provides

Indebted

549

the means of acting on that desire; and the incapacitated civil society provides the leveled terrain on which to build (dis)utopias” (88–­89). 114. For instance, there has been much controversy over a government contract with Mittal Steel to build 65,000 houses in war-­torn areas—­houses that were condemned by the ostensible beneficiaries for a host of reasons, including questions of quality and cost. See submission by the opposition political party outlining these concerns: “65,000 Houses Saga: TNA Requests a Review of the Contract,” Sri Lanka Brief, April 18, 2016, http://srilankabrief.org/2016/04/65000-houses-saga-tna-re​ quests-a-review-of-the-contract/. However, top-­down projects did not have a monopoly on problematic outcomes. ODHA sought to correct for the centralization, hierarchy, and planning hubris of the traditional approach to infrastructure development—­however, it too had unintended maldistributive outcomes that led vulnerable communities to greater financial precarity; it too found itself embedded in an unforgiving economic landscape, locally and globally, that reproduced hierarchy and maldistribution; it too converged with economic governance logics that entrenched “crisis ordinariness.” “Crisis” Berlant says, “is not exceptional to history or consciousness but a process embedded in the ordinary that unfolds in stories about navigating what’s overwhelming”; thus, ordinary life unfolds as “an impasse shaped by crisis in which people find themselves developing skills for adjusting to newly proliferating pressures to scramble for modes of living on.” Berlant, Cruel Optimism, 8. 115. Krisanthi Seneviratne, Dilanthi Amaratunge, and Richard Haigh, “Managing Housing Needs in Post-­Conflict Housing Reconstruction in Sri Lanka: Gaps versus Recommendations,” International Journal of Strategic Property Management 20, no. 1 (2016): 88. 116. Abhas K. Jah, Jennifer Duyne Barenstein, Priscilla M. Phelps, Daniel Pittet, and Stephen Sena, Safer Homes, Stronger Communities: A Handbook for Reconstruction after Natural Disasters (Washington D.C.: World Bank, 2010). 117. Katherine N. Rankin and Yogendra B. Shakya, “Neoliberalizing the Grassroots? Microfinance and the Politics of Development in Nepal,” in Neoliberalization: States, Networks, Peoples, ed. Kim England and Kevin Ward (Hoboken, N.J.: Wiley-­Blackwell, 2007). 118. Milford Batemen, Why Doesn’t Microfinance Work? The Destructive Rise of Local Neoliberalism (London: Zed Books, 2010). 119. Simin Davoudi and Ali Madanipour, “Localism and Neo-­liberal Governmentality,” Town Planning Review 84, no. 5 (2013): 551. 120. See Askin, “The Power of Women” (see chap. 2, n. 68), for background on the civil war in Sri Lanka. 121. Turning around the Tsunami: UN-­Habitat Working in Partnership in Sri Lanka (Nairobi: United Nations Human Settlements Programme, 2011), http://unhabitat​ .org/books/turning-around-the-tsunami/#. 122. Vagisha Gunasekrar and Ruvani Fonseka, “Women-­Headed Households: Busting Some Common Myths,” Daily Financial Times, September 19, 2015, http:// www.ft.lk/article/472475/Women-headed-households:-Busting-some​- common -myths. 123. Returning Home, 3. 124. Indian Housing Project, 13.

550

Vasuki Nesiah

125. In some cases, these programs were funded by the same donors; in other cases, by other actors. For instance, ​t he UN-­Habitat reports on the Australia/EU-­ funded program situate housing as accompanied by a range of other measures by these same donors focused on postconflict recovery and rehabilitation, including microcredit-­f unded livelihood schemes. 126. The Lessons Learnt and Reconciliation Commission (LLRC, 181) Report cites the 2011 report by the Ministry of Child Development and Women’s Affairs in recounting these numbers. Report of the Commission of Inquiry on Lessons Learnt and Reconciliation, November 2011, http://slembassyusa.org/downloads/LLRC-REPORT .pdf (hereafter LLRC Report). 127. Ibid., 182. Here the LLRC cites the submission of the Batticaloa Disaster Management Women’s Movement. 128. Jo Baker, “Seen and Not Heard: Women in Sri Lanka’s Reconciliation Commission,” Open Democracy, November 24, 2011, https://www.opendemocracy.net /jo-baker/seen-and-not-heard-women-in-sri-lankas-reconciliation-commission (accessed June 14, 2015). 129. Mapping of Socio-­Economic Support Services to Female Headed Households in the Northern Province of Sri Lanka (Colombo: United Nations, 2015), http://lk.one​ .un.org/wp-content/uploads/2016/05/Mapping-of-Socio-Economic-Support-Ser​ vices-to-Female-Headed-Households-in-the-Northern-Province-of-Sri-Lanka.pdf. 130. Ministry of Women and Child Affairs, “A New Intervention for the Socio-­ Economic Empowerment of Women Headed Households (WHHS),” May 20, 2015, http://www.childwomenmin.gov.lk/English/news/ministry-news/intervention​ -socioeconomicempowermentof. 131. Dilrukshi Handunetti, “Sri Lanka—­Jaffna—­Many Female Headed Post-­War Households,” http://www.wunrn.org/news/2011/05_11/05_02/050211_sri.htm; “Women Take over as Bread Winners in North,” IRIN, September 9, 2010, http://www.irin​ news.org/report/90429/sri-lanka-women-take-over-as-breadwinners-in-north. Sri Lanka has a relatively strong and diverse feminist community and a range of women’s rights organizations. Many local women’s rights NGOs have tracked gender dimensions of the war and government policy for many years but have had little influence in shaping policies of the magnitude of the ODH program. However, groups such as the Association for War Affected Women (AWAW) are both national and international. They are led by a Sri Lankan, have a national membership, and were founded because of the very specific contextual realities of the Sri Lankan war, including the large number of mothers of the disappeared and missing in action who were making demands of the government in regard to the disappeared and missing. However, founded in 2000, the same year that SCR 1325 was passed, AWAW was also quickly swept into the international winds birthed by SCR 1325. Thus, the director’s statement references dissemination of SCR 1325 as a key goal, and AWAW has close ties with international organizations (such as the U.S.-­based ICAN and Women Waging Peace) that seek to build awareness of SCR 1325 and integrate SCR 1325 principles into development planning (a key goal for ICAN), peace processes (a key goal for Women Waging Peace), and the like. 132. Greenberg and Zuckerman, “The Gender Dimensions of Post-­Conflict Reconstruction,” 12, 26.

Indebted

551

133. For instance, a 2006 FAO study indicated, “Most females (64%) were working age (14–­64 years) compared with 32 percent of the males.” The numbers reflect the extraordinary cumulative impact of the war. Wanasundera, Rural Women, 2. 134. LLRC Report, 182. 135. Kulasabanathan Romeshun, Vagisha Gunasekara, and Mohamed Munas, Life and Debt: Assessing Indebtedness and Socio-­Economic Conditions of Conflict-­ Affected Housing Beneficiaries in Jaffna, Kilinochchi and Mullaitivu Districts (Colombo: Centre for Poverty Analysis, 2014). 136. “Beneficiaries [were] provided financial assistance of LKR 550,000 for construction. However, a number of development agencies have reported LKR 646,000 is required to complete it, which therefore requires beneficiaries to contribute almost LKR 100,000 of their own funds to complete the house.” Ambika Satkunananthan, “Post-­War Reconstruction and Women: Has the Indian Housing Project Become a Debt Trap?,” Groundviews, March 13, 2015, http://groundviews.org/2015/03/13/ post-war-reconstruction-and-women-has-the-indian-housing-project-become-a​ -debt-trap/. 137. For more on the predatory nature of microfinance schemes, see Ahilan Kadirgmar, “Micro-­finance and Leasing: Today’s Loan Sharks,” Committee for the Abolition of Illegitimate Debt, June 21, 2017, http://www.cadtm.org/Micro-finance -and-Leasing-Today-s. 138. Namini Wijedasa, “Northern Village Women in Claws of Microfinance Monster,” Sunday Times, March 4, 2018, http://www.sundaytimes.lk/180304/news​ /northern-village-women-in-claws-of-microfinance-monster-284599.html. 139. Ibid. 140. Shanthi Sethe, the Sri Lankan–­Canadian legal scholar, has done ethnographic work with women indebted by microfinance schemes. Her work documents individual stories of women pawning their jewelry and other assets as debts accrued. Shanthi Sethe, “Twail” (remarks, University of Colombo, Faculty of Law, January 2017). 141. Indian Housing Project, 13. 142. The Sri Lankan debt economy is itself structured by the vicious cycles of a global economy, and the dynamics of the internal and external debt crisis are intertwined. See David Graeber, Debt: The First 5000 Years (New York: Melville House, 2011). This monumental book offers a wide-­ranging window into the sociopolitical history of debt. For country-­specific studies of debt precarity, see Heriberto Martínez-­ Otero and Ian J. Seda-­Irizarry, “The Origins of the Puerto Rican Debt Crisis,” Jacobin, August 2015, https://www.jacobinmag.com/2015/08/puerto-rico-debt-crisis-imf/; and Yanis Varoufakis, And the Weak Must Suffer What They Must? Europe’s Crisis and America’s Economic Future (New York: Nation Books, 2016). Significantly, Varoufakis warns that calling the Greek crisis a “debt crisis” can be dangerous because it clouds the multiple dimensions of the structure of the world economy that engenders crisis—­so rather than calling the Greek crisis a “debt crisis,” he says that “Instead, we had what I call the twin peaks crisis. We have a mountain of un-­payable debts and banking losses, which is what provokes people to talk about the debt crisis. Behind that mountain there is a second peak, a mountain of idle savings of surpluses too frightened to be invested productively and in a manner that produces

552

Vasuki Nesiah

the income by which to repay the losses and the debts.” Yanis Varoufakis, “There Is No Such Thing as Debt Crisis,” OECD Observer, February 2015, http://oecdobserver​ .org/news/fullstory.php/aid/4767/Yanis_Varoufakis:__There_is_no_such_thing​ _as_a_debt_crisis_.html#sthash.UBnNYKon.dpuf. (This is a transcript of a presentation by Varoufakis to the OECD in March 2013.) 143. Wade Shepard, “Sri Lanka’s Debt Crisis Is So Bad the Government Doesn’t Even Know How Much Money It Owes,” Forbes, September 30, 2016, http://www​ .forbes.com/sites/wadeshepard/2016/09/30/sri-lankas-debt-crisis-is-so-bad-the​ -government-doesnt-even-know-how-much-money-it-owes/#60f0431ea831. The debt accrued by the government by selling bonds in foreign currency to raise money has been estimated at approximately $65 billion. This was a September 2016 estimate by Forbes. Sri Lanka recorded a government-­debt-­to-­GDP ratio that was over 75 percent of the country’s gross domestic product in 2014; “Sri Lanka Government Debt to GDP,” Trading Economics, http://www.tradingeconomics.com/sri-lanka/govern​ ment-debt-to-gdp (accessed February 13, 2017). 144. In 2016, the government took out a $1.5 billion loan from IMF to address this balance of payments crisis; see Shihar Aneez, “Sri Lanka to Get $1.5 Billion IMF Loan to Avert Balance of Payments Woes,” Reuters, March 7, 2016, http://www .reuters.com/article/us-sri-lanka-imf-idUSKCN0W912E. 145. “The country’s debt-­to-­GDP currently stands around 75% and 95.4% of all government revenue is currently  going towards debt repayment”; see Tharushan Fernando, “Failed Large-­Scale Projects Has Sunk the Nation into Further Debt,” News First, July 30, 2016, http://newsfirst.lk/english/2016/07/failed-large-scale-projects -sink-nation-debt/143319; Shepard, “Sri Lanka’s Debt Crisis.” 146. In 2009, the year the war ended, the International Organization for Migration (IOM) and the Institute of Policy Studies of Sri Lanka (IPS) produced a report that described the role of foreign employment thus: “The International remittances, being the most tangible benefit of migration, plays an important role in the Sri Lankan economy contributing 7 per cent of its GDP, 36 per cent of its export earnings and 36 per cent of current receipts in the Balance of Payments. Remittances have become the leading source of foreign capital to Sri Lanka, overtaking the official development assistance and foreign direct investment.” International Migration Outlook—­Sri Lanka 2008 (Colombo: IOM and IPS, 2009), xii–­xiii, http://lk.one.un.org​ /wp-content/uploads/2016/05/International-Migration-Outlook-Sri-Lanka-2008. pdf. The then government sought to encourage and support such migration through a range of measures, including enabling subsidized debt, as an inducement. The report cites government policy commitments for “a bank loan scheme to be introduced to cover the initial expenses of those who secure foreign employment” as well as “special housing loan schemes to be arranged through state and private banks.” Ibid., 9. 147. Workers begin their contracts with large debts (part payment for the opportunity for the contract itself) that their salaries may gradually pay off. Richard Morin, “Indentured Servitude in the Persian Gulf,” New York Times, April 12, 2013, http://www.nytimes.com/2013/04/14/sunday-review/indentured-servitude​ -in-the-persian-gulf.html. 148. Under this scheme, visitors are asked for a steep £3,000 ($4,844) deposit before they are allowed to enter the country, which will be refunded upon departure but forfeited if visitors overstay their visas.

Indebted

553

149. International Monetary Fund, Debt: Use It Wisely (Washington, D.C.: International Monetary Fund, October 2016), ix, https://www.imf.org/en/Publications​ /FM/Issues/2016/12/31/Debt-Use-it-Wisely. 150. Margaret Atwood, Payback: Debt and the Shadow Side of Wealth (Toronto: House of Anansi Press, 2008), 9. 151. For instance, for more on the Jubilee movement in South Africa, see Cyrus Rustomjee, Jubilee South Africa (Durban: Centre for Civil Society and the School of Development Studies, University of KwaZulu-­Natal, 2004). For more on the Jubilee movement in the United Kingdom, see https://jubileedebt.org.uk/. 152. David Graeber, Debt: The First 5000 Years (New York: Melville House, 2011). 153. The notion of “odious debt” foregrounds the conditions under which the debt was incurred (with particular attention to national debt incurred by corrupt or authoritarian regimes) in ways that weaken repayment obligations of successor governments. The legal scholar Robert Howse describes the concept as follows: “The concept of ‘odious debt’ regroups a particular set of equitable considerations that have often been raised to adjust or sever debt obligations in the context of political transitions, based on the purported odiousness of the previous regime and the notion that the debt it incurred did not benefit, or was used to repress, the people.” In The Concept of Odious Debt in Public International Law, UNCTAD Discussion Papers No. 185 (Geneva: United Nations, 2007). See also Working Group on the Prevention of Odious Debt, Preventing Odious Debt Obligations: A New Tool for Protecting Citizens from Illegitimate Regimes (Washington, D.C.: Center for Global Development, 2010), http://cgdev.org.488elwb02.blackmesh.com/sites/default/files/1424618_file​ _Odious_Debt_FINAL_web.pdf. 154. Indeed, in the time between the completion of this chapter in 2017 and the return of the manuscript for review in mid-­2018, there were significant developments in these struggles. For instance, in February 2018 over 3,000 people (women and men) took to the streets to protest the debt situation and highlight the targeting of rural women by microfinance companies. Meera Srinivasan, “Thousands Rally over Mounting Debt in Sri Lanka,” The Hindu, February 27, 2018, https://www.the​ hindu.com/news/international/thousands-rally-over-mounting-debt-in-northern​ -sri-lanka/article22870307.ece. 155. See Zahrah Imtiaz, “Members of Cooperative Societies Take to the Streets,” Daily News (Colombo, Sri Lanka), February 28, 2018, https://www.dailynews​ .lk/2018/02/28/local/144194/members-coopertive-societies-take-streets. These efforts are indicators not only of the burdens engendered by the debt crisis but also of the postwar revival of the region’s long history of cooperatives and the social movements that have emerged from those institutions that seek to socialize certain banking functions, including access to credit. See Ahilan Kadirgamar’s discussion of the long history of cooperatives in the region and their potential for advancing local priorities in the current conjuncture, “Economic Crisis and Cooperative Possibilities,” Daily Mirror, August 21, 2017, https://www.pressreader.com/sri-lanka/daily-mirror​ -sri-lanka/20170821/282364039795133. 156. Thus in July 2018 the Sri Lankan government announced that it has “decided to grant a debt write-­off for women-­headed households in 12 drought affected districts, including some in north and north-­central provinces. The scheme is only applicable for non-­ consumption loans under SLR 100,000 obtained from any

554

Vasuki Nesiah

registered finance company, a statement issued by the finance ministry said. Further, to stop exploitation, the government also imposed an interest cap of 30 percent per annum on all loans given by microfinance companies.” Chathuri Dissanayake, “As Communities in North, East Sri Lanka Drown in Debt, Government Struggles to Regulate Micro-­finance,” Firstpost, July 30, 2018, https://www.firstpost.com​ /world/as-communities-in-north-east-sri-lanka-drown-in-debt-government-strug​ gles-to-regulate-micro-finance-4853241.html. 157. Erica Bornstein and Ardhana Sharma, “The Righteous and the Rightful: The Technomoral Politics of NGOs, Social Movements, and the State in India,” American Ethnologist 43, no. 1 (2016): 76–­77. In their usage, “technomoral politics” speaks to the politically strategic “integration of technical and moral vocabularies”; in particular, the term “refers to how social actors translate moral projects into technical, implementable terms as laws or policies, as well as justify technocratic acts—­such as development and legislation regarding administrative reform—­ a s moral imperatives.” 158. Indian Housing Project, 56. 159. Giles Mohan and Kristian Stokke describe how invocations of the local fused with neoliberal economic programs; these developments had maldistributive consequences that are often associated with top-­down programs. Mohan and Stokke, “Participatory Development and Empowerment: The Dangers of Localism,” Third World Quarterly 21, no. 2 (2000): 247–­68. 160. Wendy Brown, Undoing the Demos (New York: Zone Books, 2015), 35–­36. Brown argues in fact that “Even the termite metaphor is not quite apt: Foucault would remind us that any ascendant political rationality is not only destructive, but brings new subjects, conduct, relations, and worlds into being.” 161. Pheng Cheah, Inhuman Conditions: On Cosmopolitanism and Human Rights (Cambridge, Mass.: Harvard University Press, 2006). Describing a dynamic that resonates with this discussion, Pheng Cheah notes that we often speak of the inhuman as a counter to the human, but instead we need to see it as inhabited by the human, itself a product of humans. Interested in how inclusion is central to the logic of capitalism, Cheah is focusing on the structural inequalities of globalization and speaks about how the inhumanities of the global labor market are very much of this world and its asymmetries of wealth and power. In the context of debt, title, and entrepreneurship, empowerment is a way in which we are included in the market, a way for the human to inhabit the inhuman. Cheah quotes Kofi Annan to underscore this analysis: “In many parts of the world, very destructive forces have been unleashed. We like to call them inhuman but in reality they are all too human” (2).

Acknowledgments

This book, Governance Feminism: Notes from the Field, and its companion volume, Governance Feminism: An Introduction, gather conversations and labors spanning almost fifteen years. We owe many thanks to all our coworkers, interlocutors, contributors, and resisters. We owe special thanks to a few people who have organized with us, written with us, criticized our drafts, broken bread with us, and labored in the vineyard of feminist law reform with us over these many years. They include Libby Adler, Aziza Ahmed, Elizabeth Bartholet, Karen Engle, David Kennedy, Duncan Kennedy, Jeannie Suk Gersen, and Chantal Thomas. Without their clear-­eyed critical and activist energies, we would have lost our way in this project dozens of times. We particularly want to note our gratitude, admiration, and love for Helen Reece, who joined the project midway into its development and died, so young, before we brought it to fruition. Helen exemplified the courage, honesty, and willingness to engage—­even when intense political pressure threatened to shut down the space for internal critique—­ that we think are needed by all of us who seek to participate as responsible feminist governors. This has been a remarkably interlocutory process, built over a series of conferences that we organized in Cambridge and Dighton, Massachusetts; London; and Tel Aviv over our many years’ efforts to figure out what was happening to governance as some feminists and feminist ideas entered it, and what was happening inside feminism as this shift in its capacities evolved. Those who inspired us and helped us on sex, 555

556

Acknowledgments

sexuality, gender, and the family include Lila Abu-­Lughod, Libby Adler, Aziza Ahmed, Helena Alviar Garcia, Elizabeth Bernstein, Mary Anne Case, Cyra Choudhury, Janie Chuang, Amy J. Cohen, Dan Danielsen, Adrienne Davis, Karen Engle, Pascale Fournier, Anne T. Gallagher, Jacob Gersen, Leigh Goodmark, Aeyal Gross, Aya Gruber, Rema Hammami, Vanja Hamzić, Isabel Cristina Jaramillo Sierra, Nkatha Kabira, Lisa Kelly, David Kennedy, Duncan Kennedy, Karen Knop, Gillian Lester, Maleiha Malik, Sally Engle Merry, Kate Mogulescu, Vasuki Nesiah, Diane Otto, Helen Reece, Annelise Riles, Kerry Rittich, Darren Rosenblum, Jeannie Suk Gersen, Chantal Thomas, and Mariana Valverde. As we tested the idea of governmentality against various theoretical and actual framings of the state, we learned much from Raanan Alexandrovitch, Ori Aronson, Ritu Birla, Yishai Blank, Amy J. Cohen, Talia Fisher, Aeyal Gross, Daphna Hacker, Kevin Kolben, Roy Kreitner, Orly Lobel, Doreen Lustig, Zina Miller, Guy Mundlak, Adi Ophir, Issachar Rosen-­ Zvi, Gila Stopler, Yofi Tirosh, Dana Weiss, Neta Ziv, and Raef Zreik. Hester Eisenstein and Marian Sawer generously updated us on the Australian femocrats. We are grateful to all the contributors to this book for their prior work and the essays they bring to this volume. We gained immensely from the outside reviews contributed by Lila Abu-­Lughod and one anonymous reviewer. All of us have learned so much from exchanges with our students at Harvard Law School; the Dickson Poon School of Law, King’s College London; the School of Oriental and African Studies, London; the University of Florida Levin College of Law; Temple University Beasley School of Law; the Tel-­Aviv University Buchmann Faculty of Law; and the University of California at Berkeley. Hila Shamir’s spring 2015 course on Governance Feminism at UC Berkeley provided a particularly timely and intense laboratory for ideas that appear in these books. Thanks to all our students for their critical passion for social justice. In conferences large and small we have benefited from opportunities to explore the implications of Governance Feminism, and we want to thank the many generous institutional sponsors of these events. Support for the initial exploratory mini-­conference “Governance Feminism?,” held in Cambridge, Massachusetts, in March 2006, was provided by the Harvard Law School Program on Law and Social Thought. We also thank the Minerva Center for Human Rights and the Paula

Acknowledgments

557

Goldberg Fund for International Law at the Tel-­Aviv University Buchmann Faculty of Law, the Program of Law and Social Thought at Harvard Law School, and the University of Florida Levin College of Law for sponsoring our conference “Governance without a State? Governmentality in a Global World,” held in June 2012 at the Tel-­Aviv University Buchmann Faculty of Law, and our study tours of East Jerusalem (led by Ir Amim) and of Hebron (led by Breaking the Silence) in connection with that conference. We particularly thank Zina Miller and Rob Blecher for help in organizing those events. We thank the Dickson Poon School of Law, King’s College London, for supporting and housing the International Workshop on Governance Feminism in May 2014, and the Law and Society Association for including the panel “Governance Feminism” in its 2015 annual meeting in Seattle, Washington. We thank the Rosalinde and Arthur Gilbert Foundation’s Israel Studies Colloquium; the Stanford Law School Law and Humanities Workshop; the Berkeley Institute for Jewish Law and Israel Studies Colloquium; the Tel-­Aviv University Faculty of Law Faculty Workshop; the College of Law and Business (Ramat Gan) Faculty Workshop; the Law, Globalization, and the Transnational Sphere Project at the Minerva Center for Human Rights at Tel-­Aviv University; and the International Law Workshop at Tel-­Aviv University for inviting Hila Shamir to present her research on Governance Feminism. Janet Halley benefited in ways that directly enriched this volume from her participation in the conference “Is Gender Violence Governable? International Feminist Regulation,” sponsored by the Center for the Study of Social Difference at Columbia University in October 2016. Prabha Kotiswaran is grateful to the Jindal Global Law School; the Centre for South Asian Studies, University of Toronto; and the Centre for Women’s Development Studies and the Centre for the Study of Law and Governance, Jawaharlal Nehru University, for an opportunity to present her chapter in their respective seminar series. She also thanks the organizers of the Law and Social Sciences Network Conference for hosting a Consent Roundtable, and Brenna Bhandar for organizing the Workshop on Taking Account of Postcolonial Legal Theory, at the School of Law at Queen Mary University of London, where she presented her research. Finally, we thank the Temple University Beasley School of Law Faculty Colloquium, the University of Richmond School of Law Emroch

558

Acknowledgments

Faculty Colloquy Series, the Vulnerability and the Human Condition Workshop on Reproduction and Sexuality, the Southeastern Association of Law Schools 2013 Annual Conference, and Northeastern Law Workshop on Sexuality and Reproduction for inviting Rachel Rebouché to present her research. The Harvard Law School Institute for Global Law and Policy (IGLP) has been a steadfast supporter, providing funds for the conference “Reproduction and Sex in Contemporary Governmentalities: Governance Feminism and Its Others,” held at Dighton, Massachusetts, in September 2011, and for “Governance Feminism: A Writer’s Workshop,” at which contributors to both books presented works in progress, held at Harvard Law School, in January 2015. We are also grateful to the IGLP for including the panels “Governance Feminism: Sex, Reproduction, and the Family” and “Rethinking Twenty Years of Feminist Law Reform on Sexual Violence” in its June 2013 conference, and for staging “Roundtable on Governance Feminism” in its June 2015 conference at Harvard Law School. Indeed, we have benefited so much from all these conversations that it is important to note that all errors of fact and judgment remain our own. We have also benefited from many forms of institutional support. Prabha Kotiswaran in particular is grateful for a Leverhulme Trust Prize (Award Number PLP-­2014-­387), and Hila Shamir to the Israel Science Foundation (Grant No. 1697/15); this support enabled them to dive deeply into the political and legal events analyzed in this book. Richard W. Morrison, our first editor at the University of Minnesota Press, and now at Fordham University Press, gave us crucial advice at the outset of our work toward these books; and our new editor, Jason Weidemann, has been a steadying force ever since he stepped into the role. The librarians at all of our schools ­(Harvard Law School; the Dickson Poon School of Law, King’s College London; the School of Oriental and African Studies, London; the University of Florida Levin College of Law; Temple University Beasley School of Law; the Tel-­Aviv University Buchmann Faculty of Law; and the University of California at Berkeley) ­have been stalwarts as we sought materials from all over the world. Terry Cyr, Michal Locker-­Eshed, Caitlin Harrington, and Gemma Noyce provided support for every aspect of our work on this project, from teaching to conferences to research to coordinating

Acknowledgments

559

incoming manuscripts. We were so lucky to have the stellar research and editing assistance of Beanka Chiang, Theo Cornetta, Sarah M. Deibler, Daniel Fishelovich, James Glowacki, Kelsey Grimes, Laura Lazaro Cabrera, Karin Rotenberg, Sharon Salinas, Claudia Veronica Torres Patino, and Hyun-Kyung Yuh. Above all, we thank critically engaged feminists around the world who inspired this project and whose work we hope these books will strengthen.

This page intentionally left blank

Contributors

Libby Adler is professor of law at Northeastern University School of Law. She writes and teaches in the areas of sexuality, gender, family, child welfare, and constitutional law. She is coeditor of Women and the Law (with Mary Joe Frug) and author of Gay Priori: A Queer Critical Legal Studies Approach to Law Reform. Aziza Ahmed is professor of law at Northeastern University School of Law. Her scholarship examines the role of science and activism in shaping global and national law and policy with a focus on criminal laws that impact health. She teaches property law, reproductive and sexual health and rights, and international health law. She has been a fellow with the Program in Law and Public Affairs at Prince­ton University, and she is working on a book project on law, feminism, and epidemiology in the AIDS response. Elizabeth Bernstein is professor of women’s, gender, and sexuality studies and of sociology at Barnard College, Columbia University. With Janet Jakobsen, she serves as codirector of the Barnard Center for Research on Women’s project on Gender, Justice, and Neoliberal Transformations. She is the author of Temporarily Yours: Intimacy, Authenticity, and the Commerce of Sex, which received two distinguished book awards from the American Sociological Association as well as the 2009 Norbert Elias Prize, and Brokered Subjects: Sex, Trafficking, and the Politics of Freedom.

561

562

Contributors

Amy J. Cohen is professor of law at the Ohio State University Moritz College of Law. She brings a range of qualitative and historical research methods to bear on two areas of legal scholarship: alternative dispute resolution and law and economic development. She has held visiting professorships at Harvard Law School, Osgoode Hall Law School, the University of Turin, and the West Bengal National University of Juridical Sciences, and fellowships from the Radcliffe Institute for Advanced Study, the Fulbright Program, and the American Institute of Indian Studies.  Karen Engle is the Minerva House Drysdale Regents Chair in Law and the founder and codirector of the Rapoport Center for Human Rights and Justice at the University of Texas at Austin. She teaches and researches in the fields of public international law, international human rights law, and legal theory. She is the author of The Elusive Promise of Indigenous Development: Rights, Culture, Strategy, and coeditor of Anti-­Impunity and the Human Rights Agenda and After Identity: A Reader in Law and Culture. She has written numerous scholarly articles on the women’s human rights movement and on the international legal treatment of sexual violence in conflict. Jacob Gersen is the Sidley Austin Professor of Law at Harvard Law School. He teaches and writes in the fields of administrative law, constitutional theory, legislation, and political institutions. Jeannie Suk Gersen is John H. Watson Professor of Law at Harvard Law School. Her books include Postcolonial Paradoxes in French Caribbean Writing: Césaire, Glissant, Condé and At Home in the Law. Leigh Goodmark is professor of law at the University of Maryland Frances King Carey School of Law. She teaches family law, gender and the law, and gender violence and the law, and she directs the Gender Violence Clinic, an organization providing direct representation in matters involving intimate partner abuse, sexual assault, trafficking, and cases involving gender violence. Her scholarship focuses on intimate partner violence. She is coeditor of Comparative Perspectives on Gender Violence: Lessons from Efforts Worldwide and author of A Troubled Marriage: Domestic Violence and the Legal System, which was named a Choice Outstanding Academic Title of 2012. Her

Contributors

563

work on intimate partner violence has appeared in numerous journals, law reviews, and other publications. Aeyal Gross is professor of law at Tel Aviv University. He teaches and publishes in the areas of international and constitutional law, human rights, and law and sexuality. He has held visiting fellowships and taught at universities worldwide, including Columbia University, the University of Toronto, and the Academy of European Law, European University Institute. He is also a visiting professor of law at SOAS, University of London. His publications include The Writing on the Wall: Rethinking the International Law of Occupation and The Right to Health at the Public/Private Divide: A Global Comparative Study (coedited with Colleen Flood). Aya Gruber is professor of law at the University of Colorado (Boulder) Law School.  Her scholarship focuses on the influence of U.S. second-­wave feminism on American criminal law and mass incarceration. She is working on a book on U.S. feminism and crime control. Janet Halley is the Royall Professor of Law at Harvard Law School. She is the author of Split Decisions: How and Why to Take a Break from Feminism and Don’t: A Reader’s Guide to the Military’s Anti-­Gay Policy. She is coeditor of Left Legalism / Left Critique with Wendy Brown and After Sex? New Writing since Queer Theory with Andrew Parker, and she edited a special issue of the American Journal of Comparative Law titled “Critical Directions in Comparative Family Law.” She is coauthor, with Prabha Kotiswaran, Rachel Rebouché, and Hila Shamir, of Governance Feminism: An Introduction (Minnesota, 2018). Rema Hammami is a founding member of the Institute of Women’s Studies at Birzeit University, Palestine, where she is associate professor of anthropology. Her publications cover development, politics, spatialities, and gender in the context of Palestine. She has been a Carnegie Centennial Scholar at Columbia University and held the Prince Claus Chair in Equity and Development at the Institute of Social Studies in The Hague. Vanja Hamzić is a senior lecturer in legal history and legal anthropology at the School of Oriental and African Studies, University of London; a member in the Institute for Advanced Study at Princeton;

564

Contributors

and an academic fellow of the Honourable Society of the Inner Temple. His work has sought to shed new light on how gender-variant individuals and communities have braved the turbulent tides of colonialism, slavery, and other forms of legally sanctioned oppression and how, in turn, they have developed and abided by multiple formations of insurrectionary knowledge. He is coauthor, with Ziba Mir-­Hosseini, of Control and Sexuality: The Revival of Zina Laws in Muslim Contexts, and author of Sexual and Gender Diversity in the Muslim World: History, Law, and Vernacular Knowledge. Isabel Cristina Jaramillo Sierra is Full Professor of Law at Universidad de los Andes, Bogotá, and founding member of the Latin American Network of Feminist Law Scholars (RED Alas). Her research focuses on feminist legal reform and family law. She has written extensively on sexual and reproductive rights, family law, and feminist jurisprudence. Among her most influential works are Mujeres, cortes y medios, with Tatiana Alfonso (on the reform of abortion law); Feminismo y crítica jurídica, with Helena Alviar (on critical feminist legal theory); and Derecho y familia en Colombia: Historias de raza, sexo y propiedad, 1580–­1990 (on the history of family law). She has served several terms as Ad Hoc Justice to the Colombian Constitutional Court and the State Council. She was nominated in 2017 to the Colombian Constitutional Court by President Juan Manuel Santos. Prabha Kotiswaran is professor of law and social justice at King’s College London. Her areas of research include criminal law, transnational criminal law, sociology of law, postcolonial theory, and feminist legal theory. Her book Dangerous Sex, Invisible Labor: Sex Work and the Law in India won the 2012 SLSA-­Hart Prize for Early Career Academics. She is the editor of Revisiting the Law and Governance of Trafficking, Forced Labor, and Modern Slavery and of the anthology Sex Work, and she is coeditor, with Diamond Ashiagbor and Amanda Perry-­Kessaris, of special issues of the Journal of Law and Society and the Northern Ireland Legal Quarterly on the economic sociology of law. She is coauthor, with Janet Halley, Rachel Rebouché, and Hila Shamir, of Governance Feminism: An Introduction (Minnesota, 2018). Maleiha Malik is professor of law at King’s College London. Her research and publications focus on discrimination law, feminist theory,

Contributors

565

and minority protection. Her work on feminist theory has addressed the intersection of gender equality with racial, cultural, and religious difference. Her publications include Discrimination Law: Theory and Context and Patterns of Prejudice. She has also published extensively on the use of law to regulate face veils in the European Union, with a focus on the decisions of the European Court of Human Rights. Vasuki Nesiah is associate professor of practice at the Gallatin School at New York University. She has published widely on the history and politics of human rights, humanitarianism, and international criminal law; international feminisms; and decolonization. Her recent publications include a coedited volume, A Global History of Bandung and Critical Traditions in International Law. A founding member of Third World Approaches to International Law (TWAIL), she has actively participated in this global scholars’ network for more than two decades. Dianne Otto is professorial fellow at Melbourne Law School, where she held the Francine V. McNiff Chair in Human Rights Law from 2013 to 2016. Her publications include Queering International Law: Possibilities, Alliance, Complicities, Risks, which she edited. Rachel Rebouché is professor of law and associate dean for research at Temple University Beasley School of Law, where she teaches family law, health care finance and regulation, and comparative family law. She is coauthor of the sixth edition of the casebook Family Law, with Leslie Harris and June Carbone, and she is writing a book on reproductive justice and editing a collection of rewritten family law opinions for the Feminist Judgments series. She is coauthor, with Janet Halley, Prabha Kotiswaran, and Hila Shamir, of Governance Feminism: An Introduction (Minnesota, 2018). Helen Reece (1968–­2016) was associate professor of law at the London School of Economics. She previously held appointments at Birkbeck College, London, and University College London. A preeminent family lawyer, her 1996 article “The Paramountcy Principle: Consensus or Construct?” remains an essential text, and her monograph Divorcing Responsibly, on the influence of postliberal notions of choice on the law of divorce, was awarded the Socio-­Legal Studies Association Book Prize in 2004. Whether writing about adoption, parenthood,

566

Contributors

domestic violence, or the law of sexual offenses, she transcended legal categories in her work and was characterized by the aim to uncover and contest the social and political assumptions behind existing legal rules and prevailing opinion. Darren Rosenblum is a professor at Haub Law School, Pace University, where he teaches contracts, corporations, and international business transactions and directs the Business Law Concentration and Private International Law Programs. He clerked in the U.S. District Court of Puerto Rico (1996–­98) and practiced  international arbitration at Clifford Chance and Skadden, Arps, Slate Meagher and Flom (1998–­ 2004). He has been a visiting professor at Brooklyn Law School, Sciences Po Law School, American University, and Seattle University. Hila Shamir is associate professor at Tel Aviv University Faculty of Law. She teaches and researches in the fields of employment, labor, immigration, and welfare law, with a focus on gender equality, informal work, and welfare state privatization. She has taught at Cornell Law School, the Harvard University Department of Government, and the University of California at Berkeley. She is a recipient of a European Council research grant (ERC) for the research TraffLab: Labor Perspective to Human Trafficking, as well as an Israel Science Foundation (ISF) Grant, a Fulbright Scholarship, the EU Marie Curie Reintegration Grant, and the Alon Scholarship for outstanding junior faculty. She is coauthor, with Janet Halley, Prabha Kotiswaran, and Rachel Rebouché, of Governance Feminism: An Introduction (Minnesota, 2018). Mariana Valverde spent much of the 1980s involved in feminist, gay liberation, and Latin America solidarity activism, but since the 1990s she has worked primarily in academia, first in women/gender studies and then in socio-­legal studies. She is professor at the University of Toronto’s Centre for Criminology and Sociolegal Studies. Among her publications are Chronotopes of Law: Jurisdiction, Scale, and Governance; Everyday Law on the Street: City Governance in an Age of Diversity; and Law’s Dream of a Common Knowledge.

Index

Abolafia, Luis Anguita, 355 abolitionism, x–xi, xxxi, 35, 50n3, 84, 106, 119, 379, 380, 384, 400n6 abolitionist feminists, xi, xxi, 32, 34, 89, 94, 100, 102, 103, 106, 119, 120, 379, 380, 384, 400n6. See also neo-abolitionists abortion, 33, 43, 48, 279, 281, 305, 448, 459 abuse, 494, 502n47; child, 136; domestic, 93, 488, 490, 493, 495, 496; drug, 87, 449; physical, 110n53, 490; psychological, 490; sexual, 14, 90, 110n53, 159, 219, 392, 457; substance, 117. See also domestic violence ACES. See Association for Children for Enforcement of Child Support ACLU, 185 activism, x, xxii, 43, 45, 85, 180, 201, 324, 474n60; anti-trafficking, 32, 44, 46, 180; feminist, xxxi, 125, 132, 173, 220, 222, 240, 253n60, 323, 414, 418, 419, 422, 423; gay, 344, 362; grassroots, 37, 43, 124, 125, 201, 204, 511, 525; international, 23, 417; LGBT, xix, 359; sex worker, xxxi, 282; social, 31–32, 46, 49, 354, 420, 433n99; social-movement, xii, xxi, xxii Adams, Mitchell, 287

adjournment in contemplation of dismissal (ACD), 98 Adler, Libby, xix, xxi, xxvii, xxviii adultery, criminal prohibitions on, 159 Advocate, The, 350 AFDC. See Aid to Families with Dependent Children affirmative consent, 164–65 Africa, 187, 189, 235n39, 354, 358, 362, 363, 368n51, 374n100, 545 African American men, 128, 138, 144–45, 171; poor, 128. See also black men; men of color African American students, 171, 172 African American women, 144–45, 235n36, 458. See also black women; women of color Agacinski, Sylviane, 320, 321, 330 Agarwal, Bina, 541n52 Agencia Colombiana para la Reintegración (ACR), 449 Agency for Women’s Equality (Colombia), 445 Agenda for Sustainable Development (UN), 511 Ahmed, Aziza, xxi, xxvi, xxvii AIDS, 36, 44, 180, 183, 184, 188–94, 275, 356; epidemic of, 181, 182, 185, 186, 190, 192, 193, 194. See also HIV 567

568

Index

Aid to Families with Dependent Children (AFDC) (U.S.), 295, 296, 298, 300, 301, 303, 305, 308 Alexander, Marissa, 139, 153n55 Alexander, Michelle, 178n74 Ali, Ramlati, 246 Alimi, Adebisi, 358 Alliance Against Sexual Harassment (AASHA), 423 Alliance for the Safety of Prostitutes, 268 All-Indian Democratic Women’s Association, 379 All Pakistan Women’s Association, 413 Alméciga, Ilsa Carlota, 453 American Association of University Women (AAUW), 39 American Bar Association, 104, 114 American Enterprise Institute, 38 American Law Institute (U.S.), Model Penal Code by, 176n30 Amnesty International, 192, 457, 486, 543–44n71 Annan, Kofi, 554n161 anti-colonialism, xxx, xxxii, 5 anti–domestic violence movement, 142, 143. See also battered women’s movement anti-gay laws, 355, 356, 357, 362 Anti-Homosexuality Act (Uganda), 362 anti-rape campaign, 125, 397, 398 anti-sex-work laws, 379, 382–84, 386. See also abolitionism; abolitionist feminists anti-trafficking, xxxi, 33, 48, 119, 279, 388, 390–91; legal regimes, xxv, 36, 381, 382–84; projects, 104, 114, 266; rise of, xxi, xxii. See also trafficking anti-trafficking campaigns, 41, 49, 397, 398; conservative-feminist, 38; contemporary, 38, 43; newevangelical, 42–47. See also trafficking anti-trafficking movement, 32, 36, 37, 42, 43, 47–48, 50n8, 191, 279. See also trafficking apartheid, 8, 480–81

Apne Aap, 379, 387, 389, 394, 404n67 Applied Social Research (ASR) Resource Center, 414, 416, 420 Arbour, Louise, 543n70 Arcelor Mittal, 536n6, 547n106. See also Mittal Steel Archer, Bill, 307 Archila, Mauricio, 472n29 armed conflict, xxx, xxxii, 12, 204, 212, 214, 220, 439, 449, 456, 461, 466, 476n71; sexual violence and, xxi, 205, 206, 207, 217, 457–58, 476n72; women and, 222n2, 451–52, 454, 460, 462, 463, 465, 467, 469 Arrested Justice: Black Women, Violence, and America’s Prison Nation (Richie), 148 Asamblea Permanente de la Sociedad Civil por la Paz (APSCP) (Colombia), 446 ASR. See Applied Social Research Resource Center Assemblée Nationale (France), 231 Assembly of Women, 446 Association Administration Moderne, 255n80 Association des Femmes Diplômées d’Expertise Compatable Administrateur, 255n80 Association Femmes AAA+, 255n80 Association for Children for Enforcement of Child Support (ACES), 294, 300, 302 Association for War Affected Women (AWAW), 527, 550n131 Association française des enterprises privées (AFEP), 254n78 Atwood, Margaret, 532 Auclert, Hubertine, 232 AusAid/European Commission/Swiss Agency for Development and Cooperation, 535n5, 542n61, 547n105 Autodefensas Unidas de Colombia, 437 “autonomy deficits,” 318, 325, 326 AWAW. See Association for War Affected Women

Index Baby Loup case, 332 Bachpan Bachao Andolan (BBA), 379, 387, 389, 391, 392, 394, 404n67 Backhouse, Constance, 268, 269 Badinter, Élisabeth, 234, 236, 245, 250n29, 320, 322, 326, 329, 337, 338 Balibar, Étienne, 249n20 Bandino, Claudie, 333 Bane, Mary Jo, 305 Banks, Brian, 178–79n74 Barry, Kathleen, 15, 16, 27n42, 27n43, 280 Basta Ya! report, 439 Batsie, Margo, 133 battered women’s movement, 129, 130, 134, 146, 147, 494; GF and, 125–27. See also anti–domestic violence movement battery, 15, 16, 17, 162, 490 Batticaloa Disaster Management Women’s Movement, 550n127 BBA. See Bachpan Bachao Andolan Beck, Ulrich, 182 Bedford, Teri-Jean, 271, 285n31 Begum, Shabina, 324 Beijing Conference, 9, 511, 512 Beijing Declaration and Platform for Action, 11, 510, 511 Benedet, Janine, 274 Bennoune, Karima, 544n72 Benoit, Cecilia, 110n53 Bensouda, Fatou, 543n70 Benston, Margaret, 536n11 Bentot, Rabia, 327 Bereni, Laure, 323, 331 Berk, Richard, 128–29 Berlant, Lauren, 533, 535n2; capitalism and, 505; on crisis, 549n114; cruel optimism and, xxxiv Bernal, Ana Teresa, 446, 447 Bernstein, Elizabeth, xx, xxi, xxviii, xxxi; carceral feminism and, x, 20 Besson, Eric, 334 Betancur, Belisario, 438, 441, 447 Bhutto, Benazir, 416, 430n50 Bhutto, Zulfiqar Ali, 412 Biden, Joe, 126

569

Bill and Melinda Gates Foundation, 190 black men, 172, 288. See also African American men; men of color “Black Men Think Tank” (Ohio University), 170 Black Panthers, 183 black women, 144, 145, 148. See also African American women; women of color Blair, Tony, 336 Blank, Yishai, 351 Body Politic Defense Committee, 284n21 Bohner, Gerd, 59 Boserup, Ester, 536n11, 537n12 Bosnian Muslims, 28n60 Bowen, John, 325 Bradley, Bill, 303, 304, 310 Bradley Amendment (U.S.), 304, 311 Brandeis University, sexual harassment case at, 167, 168 Braunstein, Elissa, 541n52 Braxton, Robert, 137 bride burning, 16 British Overseas Development Aid, 479 Bronx County District Attorney’s Office, 98 Brooklyn Defender Services, 100 Brooklyn District Attorney’s Office, 100 brothels, 46, 53n42, 276, 277, 385 Brown, L. Tracy, 141 Brown, Michael, 288 Brown, Wendy, 38, 534 Brownmiller, Susan, 59 Bruno v. Codd, 128 Bryan, Courtney, 91, 92, 93, 102 Builes, Patricia, 452–53 Bumiller, Kristin, 40–41, 47 Bunch, Charlotte, 6, 13, 27n43, 500n26; on human rights, 15; sexual slavery and, 16 Bureau of Prisons (U.S.), 143 Buriticá, Patricia, 446, 447 burkinis, 257n94; ban on, 230, 231, 243–47

570

Index

burqas, 256n93; ban on, 230, 231, 233–38, 239, 241, 243, 244, 247, 251n37, 257n100; debate over, 239, 240 Burrows, Noreen, 24n9 Burt, Martha, 59 Bush, George H. W., 300, 301 Bush, George W., 36, 38, 48, 205, 336 Buss, Doris, 35 Butler, Judith, 203 Byrd, James, 347 CAC. See Central Advisory Committee Cain, Deborah, 128 Call + Response, 31, 33, 46 Calle Correa, Maria Victoria, 473n36 Camacho, Fernando, 90, 96 Cameron, David, 353, 359, 372n79, 372n81; gay conditionalities and, 354, 355 Campbell, Jacqueline, DV and, 140 Canada [Attorney General] v. PHS Community Services Society, 264 Canadian Advisory Council on the Status of Women, 268 Canadian Association of Elizabeth Fry Societies, 274, 281 Canadian Association of Sexual Assault Centres, 274 Canadian Broadcasting Corporation, 284n13 Canadian National Violence against Women Survey, 491, 503n58 carceral feminism, x, xx, xxi, 4, 17–21, 32, 36, 37–41, 124, 124, 145, 181, 191, 192, 405n74; criminal justice system and, 138, 189; DV and, 126, 127–32, 132–46, 148, 149 Casa de la Mujer, 444, 445, 451, 452, 453, 454 Castaño, Carlos, 437 Castillejo, Alejandro, 441 Castley, Shirley, 16, 27n43 Caterine, Emma, 111n79 Catholic Conference, 300 CATW. See Coalition Against Trafficking in Women

CBQs. See corporate board quotas CCI. See Center for Court Innovation CDC. See Centers for Disease Control and Prevention CDF. See Children’s Defense Fund CEDAW. See Convention on the Elimination of All Forms of Discrimination against Women Center for Court Innovation (CCI) (New York), 86, 87, 88, 91, 92, 93, 102, 104, 107n10 Center for Gender Studies, 444 Center for Historic Memory (Colombia), 436, 437, 439, 453, 461. See also Centro de Memoria Histórica Center for Poverty Analysis, 526, 547n105 Center for Reconciliation and Reparations (Colombia), 436 Center for Women and Development (Sri Lanka), 527 Center for Women and Policy Studies (CWPS), 130 Center for Women’s Global Leadership, 13 Centers for Disease Control and Prevention (CDC) (U.S.), 170, 178n64, 180, 183, 184 Central Advisory Committee (CAC) (India), 255n80, 392, 403n55, 503n55 Central Unida de Trabajadores, 446 Centro de Memoria Histórica (CMH) (Colombia), 439. See also Center for Historic Memory Centro de Recursos Integrales para la Familia, 453 Cepeda Castro, Iván, 471n18 Cepeda Vargas v. Colombia, 471n18 Céspedes, Lina, 441 Chacón, Jennifer, 34 Chalayan, Hussein, 236, 237, 252n52 Chaparro, Nina, 441 Chapkis, Wendy, 38 Charter of Rights and Freedoms (Canada), 264, 273

Index Chatterjee, Partha, xxx–xxxi, 379, 380, 381, 382, 385, 387, 388, 389, 398, 400n12 Chavez, Don, 303 Cheah, Pheng, 554n161 Chen, Pamela, 41 Child and Women Abuse Studies Unit, 72 Children’s Defense Fund (CDF), 306, 307 child support, 287–316; assurance, 300, 301, 303, 306; bankruptcy and, 290; congressional reforms of, 294–310; enforcement of, xix, xxviii, 289–94, 294–310, 311; evading, 291, 293, 304; gender gap and, 297–98; GF and, 293–94; guidelines for, 303, 304; orders, 291, 292, 304; reform of, 296, 298, 312n1; Republican takeover of Congress and, 307; social welfare and, 294, 298, 299, 304. See also neoliberal model; social welfare model; welfare programs; welfare state Child Support Division (Massachusetts), 302 Child Support Enforcement Amendments (U.S.), 298, 299 Child Support Interest Group (HHS) (U.S.), 305 child welfare, xii, 136, 291 Chirac, Jacques, 248n14, 320, 321, 322, 332, 333, 334 Christianity Today, 46, 47 Cifras & Conceptos, 439, 460–61 civil rights, 125, 171, 348 Civil Rights Data Collection, 171–72 civil society, 6, 145, 279, 358, 391, 413, 417, 446, 482, 483; Chatterjee on, xxx–xxxi, 379, 380, 381, 382, 385, 387, 388, 389, 389, 398, 400n12 Civil Society Monitoring Report, 520 Civil Society Organizations (CSOs), 216, 381 Civil Society Survey, 204, 210, 215, 216, 217, 218, 221 civil tort law, 164, 168

571

CLA. See Criminal Law (Amendment) Act class, xv, xxviii, xxxiv, 44, 45, 48, 49, 101, 129, 230, 241, 293, 295, 296, 297, 298, 301, 302, 311, 312, 317, 323, 253, 370n64, 409, 410, 411, 412, 413, 415, 417, 418, 420, 421, 422–24, 425, 426, 428n93, 444, 465, 500n26, 547n102 climate change, 219, 381 Clinton, Bill, 36, 301, 302, 372n78, 372n79, 372n81; welfare and, 289, 299, 304, 305–7, 308, 311 Clinton, Hillary, 209, 357, 359 CNRR. See Comision Nacional para la Reparación y la Reconciliación Coalition against Trafficking in Women (CATW), 32, 39, 40, 51n21, 97 Coalition for the Rights of Prostitutes, 268 Cohen, Amy, xxi, xxii, xxv, 101 Coke, Aubrina, 137 Coker, Donna, 146, 147 Collectif Féministes, 330 Collectif National pour le droit de femme, 330 Collectif Une Ecole pour Tous et Toutes (UEPT), 330 Collective against Islamophobia, 257n94 Colombian Agency for Rehabilitation, 449 Colombian Armed Revolutionary Forces, 437 Colombian Congress, 443, 453 Colombian Constitution, 436 Colombian State Council, 437 Colombian Supreme Court, 437 colonialism, xxxii, 8, 235, 355, 440, 482 Comisión Nacional para la Reparación y la Reconciliación (CNRR) (Colombia), 446, 447, 448, 449, 474n58 Commission on Interstate Child Support (U.S.), 303, 304, 305, 306. See also Interstate Commission

572

Index

Commission on the Status of Women (UN), 39 Committee on Women’s Issues, 89 community courts, 85–89, 95–96 Conaghan, Joanne, 59, 60 Concerned Women for America, 43 conflict. See armed conflict conflict prevention, 210, 213–14, 216, 218, 219, 227n93; women’s participation in, 228n131 conflict resolution, 210, 212, 213, 219, 522 Conflicts Tactics Scale (CTS), 488, 489, 490, 491, 492, 493, 495, 501n44, 502n47, 502n55, 502n56. See also Family Conflict framework Congressional Women’s Caucus (U.S.), 294 CONPES 161 (Colombia), 450 Conseil d’État (France), 231, 235, 243, 245, 246, 258n108, 319, 320 consent: affirmative, 74, 168; contractual, 96; political, 348, 410; sexual, 57, 59, 60, 62, 67, 73, 74,75, 76, 96, 162, 163, 164–66, 168, 169, 176n30, 176n32, 383. See also non-consent Conservative government, 266, 283n8; sex-work law and, 278, 279 Constitutional Council (France), 232, 253n64 Constitutional Court (Colombia), 436, 447, 451, 453, 458, 473n36; Decision AU-092 of, 456, 457 Consultation on Battered Women, 125 Consultoria para los Derechos Humanos y el Desplazamiento (Colombia), 463 Context Unit (Colombia), 450–51 continuum hypothesis, xxxiii, xxxiv, 457, 462, 463, 466, 469 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 5, 213, 486, 509, 510, 513 Coomaraswamy, Radika, 456

cooperation, 111n66, 121, 229n150, 291, 306, 414, 425, 432n92, 536n11; with law enforcement, 99, 103, 116, 128 co-optation, xxii, xxvii, xxviii, 22, 181, 238, 319, 346, 350, 363 Copé, Jean-François, 231, 235, 236, 237, 238, 239, 244, 248n4, 252n49, 335, 336 Copelon, Rhonda, 14, 28n60, 544n72 Córdoba, Piedad, 445, 473n36 Corporación para la Vida, 453 corporate board quotas (CBQs), 230, 231, 236, 238–43, 246, 247, 248n3, 248n4, 252n49, 253n60, 254n78, 329, 333, 334, 335; distributive effects of, 241–43; Parité and, 239–40, 242, 243, 244 Cossman, Brenda, 284n20 Council for Global Equality, 356, 361 Council of Ministers (Palestinian National Authority), 482 counterterrorism, 212, 547n102 Country Program Plans, 496 Cour de Cassation (France), 332 Court Challenges Program (France), 273 Coy, Maddy, 72, 73, 74, 75 Crabapple, Molly, 100 credit, xxxiv, 290, 505, 506, 507, 512, 513, 514, 515, 518, 519, 521, 524, 528, 529, 530, 531, 532, 534, 539n38, 542n58, 542n60, 546n92, 553n15. See also debt; loans; microcredit; microfinance Crenshaw, Kimberlé, 179n75 Crime Victimization Survey, 488, 489–90, 491, 495, 503n68 criminal defenses, deprivation of, 132, 138–39 criminalization, xi, xx, 4, 23, 36, 38, 146–49, 214, 220, 266, 274, 295, 329, 334, 337, 357, 385, 386, 387, 396, 459 Criminal Justice Operations (New York), 102 criminal justice system, 19, 20, 42–47, 58, 65–66, 83, 85, 86, 97, 102, 114, 115, 116, 117, 123, 128, 130, 132, 133–34, 134–35, 138, 140, 142, 144, 145, 147,

Index 148, 179n74, 268, 274, 289; carceral feminism and, 124, 138, 189; DV and, 124, 125, 133, 135–38, 145, 146 Criminal Law (Amendment) Act (CLA) (India), 377, 388, 390, 393, 398, 399, 402n49, 403n51, 405n84 Criminal Law Ordinance (India), 389, 390 criminal laws, 3, 19, 83, 164, 168, 192, 194, 213, 264, 270, 276, 325, 334, 377, 379, 380, 383, 393, 394, 395, 396; exposure to, 121, 312, 332; international, 12–21, 30n70, 202 crisis ordinariness, 505, 522, 531, 533, 535n3, 549n114 Crowley, Jocelyn Elise, 296 Crown Prosecution Service Legal Guidance on Rape and Sexual Offences, 65, 68 cruel optimism, 505, 507, 534, 535 CTS. See Conflicts Tactics Scale culture, xxv, xxxvn11, 4, 10, 19, 22, 23, 33, 38, 45, 46, 48, 159, 168, 181, 229n150, 230, 236, 297, 360, 329, 335, 338, 351, 353, 373n97, 389, 418, 421, 422, 440, 487, 493, 495, 497, 500n26 Daily Mail, 61 Daily Telegraph, 67 Daly, David, 526 D’Amato, Alphonse, 129 Danish People’s Party, 336 data, 171–72, 234, 460, 479–504, 511, 519, 542n62; collecting, 250n26, 493; ethnic, 250n26, 251n38 Daughtery, Sean, 133 Davis, Martha, 305 Davis v. Monroe County Board of Education, 175n16 DAWN. See Development Alternatives with Women for a New Era DCL. See Dear Colleague Letter deadbeat dads, 287, 294 Dear Colleague Letter (DCL) (U.S.), 162, 163, 167, 173 debt, xxxiv, 51n10, 153n156, 505, 506, 507, 514, 520, 528, 529, 530, 533,

573

552n145; odious, 531, 532, 553n153. See also credit; loans; microcredit; microfinance debt crisis, 531, 532, 541n142, 553n155 Debt: Use It Wisely (IMF), 532 Decide!, Parité and, 331 Déclaration des Droits de l’Homme et du Citoyen (France), 230, 232 Declaration on the Elimination of Violence against Women (UN), 186 decriminalization, 102, 192, 264, 270, 277, 280, 385, 386 DeKeseredy, Walter, 140 Delegation de l’Assemblée Nationale (France), 249n18 Delhi High Court (India), 385, 387 Delhi rape case, 388–90 Delphy, Christine, 320, 322, 323, 331, 338 democracy, 38, 232, 240, 329, 334, 349, 414 democratic politics, 379 democratic states, xxx, 325, 348, 350, 412, 442, 456, 482 democratic values, 60, 203, 259n117, 328, 333, 380 Democratic Women’s Organization (DWO), 413 democratization, 511, 519 Demographic and Health Surveys (DHS) Program, 187, 492–95, 502n53, 502n56, 503n69 Department for Women and Child Development (India), 386 Department of Sex Education, 168–69 De Soto, Hernando, 513, 515, 519, 540n46 De Soysa, Nelathi, 545n88 development, 201, 328, 408, 418, 434, 485, 487, 511, 512, 513, 516, 519, 530, 534, 537n12, 541n54; economic, xxxiii, 153, 214, 408, 412, 506, 508, 514, 515, 518, 525; empowerment and, 509, 510, 522, 524–26; feminist, xxx, 511, 515; gender, 541n50, 545n88; social, 408, 515, 520. See also international development

574

Index

Development Alternatives with Women for a New Era (DAWN), 510, 538n23 development policy, 506, 507, 508, 515, 518, 522, 535 development programs, 508, 510, 513, 526, 533, 537n12, 541n54 DHS. See Demographic and Health Surveys Program difference: cultural, 323, 331; gender, 330, 331–32; racial, 323, 329–32, 333, 335; religious, 323, 331–32, 333, 335; sexual, 323, 329, 330, 331; social, 331 Dillon, Justin, 31 Dirección Nacional para la Equidad de la Mujer, 445 Disarmament Demobilization and Reintegration (DDR), 483 Discover, 182 discrimination, 125, 161, 162, 163, 164, 172, 175n13, 175n17, 237, 245, 295, 296, 297, 330, 332, 349, 356, 358, 360, 368n49 457, 458, 509, 546n102 Discriminatory Law and Practices and Acts of Violence against Individuals Based on Their Sexual Orientation and Gender Identity (UN High Commissioner on Human Rights), 360 divorce, xiii; child support and, 295; de facto, 141; no-fault, 295 DMSC. See Durbar Mahila Samanwaya Committee Dobash, R. Emerson, 491 Dobash, Russell P., 491 Doherty, Teresa, 543n70 Dolce & Gabbana, 245 domestic violence (DV), x, xxv, xxxiv, 18, 90, 91, 92, 93, 117, 132, 148, 305, 309, 444, 449, 459, 463, 464, 485, 489–90, 493, 495; addressing, 125, 140, 146, 480, 481, 482, 488; arrests for, 31, 133–34; carceral feminism and, 126, 127–32, 132–46, 148, 149; cases involving, xxxv, 139; children and, 136, 137–38; criminalization of, 124–27, 131–32, 135–36, 145, 146, 149; feminist advocacy and, xxvii,

140; interstate, 142, 143; law, 135, 141; law enforcement and, 127, 137, 138, 139, 142, 144; measuring, 495, 502n52; mothers subjected to, 135–38; in oPt, 479, 480, 495–97, 497n3; organizations, 125, 141, 142; prostitution and, 91, 93; rates of, 131, 146; response to, xxii, 124–25, 126, 147, 148, 149; survey on, 479, 486, 496; trafficking and, 37, 93, 94, 109n44, 111n66; undocumented women and, 134–35; victims of, 90, 92, 110n61, 140, 143–44, 479 Domestic Violence Coalition on Public Policy, 126 Domestic Violence Court (New York), 90 dominance feminism, x, xix, xx, xxii, xxvi, xxvii–xxviii, xxxiii, 184, 185, 189, 190, 192, 194, 202, 206, 207, 215, 221, 400n4. See also structural bias feminism Downey-Hyde bill (U.S.), 300, 301 dowry, xxi; deaths, 8, 15 Drider, Kenza, 328 drug laws, 149, 264 Duluth Abuse Intervention Project, 128 Durbar Mahila Samanwaya Committee (DMSC), 384, 385, 386, 387, 395, 397, 398 DV. See domestic violence Dworkin, Andrea, 38 Dworkin, Shari, 189–90 Dyal-Chand, Rashmi, 542n58 Ebb, Nancy, 306 ECE. See United Nations Economic Commission of Europe Echols, Alice, xv ECHR. See European Court of Human Rights economic agency, 515, 519 economic distribution, 4, 12 economic issues, 49, 52, 148, 434, 517, 520, 526, 527, 530 economic recovery, 219, 523, 533 economic resources, 16, 213, 331, 332

Index economic rights, 6, 212, 216 Economist, 540n46 Economist Intelligence Unit, 521 Edelman, Marion Wright, 307 education, 110n53, 160, 161, 162, 168–69, 170, 179n77, 212, 219, 321, 443, 510, 545n87 Education Amendments (1972) (U.S.), 161 Eisner, Sheri, 366n36 El Haïry, Sarah, 246 Ellwood, David G., 305, 306, 307 Elvines, Fiona, 67, 72 emancipation, xiii, xiv, xv–xvi, xvii, 202, 216 employment, 110n53, 474n58, 510; discrimination in, 297, 332 empowerment, xiv, xix, 41, 511–12, 519, 520, 524, 527, 528–35, 534, 536n6, 537n21; development and, 509, 510, 522; discourse of, 506, 509, 515; economic, 41, 507–16, 528, 530, 533, 535n4; gender, 510, 524, 545n88; language of, 511–12; mechanisms, 249n17, 295, 308, 312, 483; women’s, 505, 506, 510, 511, 512, 515, 516, 531, 537n21 “end demand” campaigns, 39, 396. See also abolitionism; abolitionist feminists engagement: civil, 420; critical, xvi, xxiii; development-policy, 508; feminist, xv, 3, 4–12, 419; GF and, 106; political, 420 Engel, Stefanie, 465 Engle, Karen, xx, xxi, xxx, xxxiii, 205 entrepreneurship, 518, 521, 522, 524, 531, 539n36, 554n161; women and, 506, 512, 515, 519 “Equal Access of Women and Men to Electoral Office and Elected Functions,” 233 equality, 5, 44, 130, 186, 210, 230, 231, 233, 236, 240, 241, 242, 243, 248n12, 253n60, 273, 285, 293, 318, 324, 333, 338, 345, 346, 348, 356, 358, 412, 418, 508, 509, 510, 511, 512, 519, 522, 539;

575

gender, 175n13, 216, 217, 264, 319, 321, 322, 335, 337, 417, 490, 515, 520; LGBT, 330, 347, 363 Equality Now, 32, 40, 45, 192 Equipo de asesores en Género y Enfoque Diferencial (Colombia), 450 Escobar, Arturo, 524 Estefan Vargas, Soraya, 441 Ethical and Safety Recommendations for Research on Domestic Violence against Women (WHO), 494 ethics, xvii–xviii, xix, 409, 494, 495 ethnic groups, xix, 22, 23, 250n21, 331, 465, 474n60 European Convention on Human Rights, 237 European Court of Human Rights (ECHR), 245, 250n22, 324, 325; Burka ban and, 237, 337 European Institute for Crime Prevention and Control (HEUNI), 503n68 Evangelical Christians, 31, 33, 35, 44, 47; abolitionist feminists and, 32, 34, 48 Evangelicals for Social Action, 40 Evans, Carolyn, 337 Evans, Ched, 60, 62 everydayvictimbaiting​.com, 68 expertise, xxi, xxxi, 218, 302, 325, 410, 417–19, 444, 452 Exploitation Intervention Project, 85, 105, 112n80, 113–14 Extraordinary Chambers in the Courts of Cambodia (ECCC), 543n70 Family Conflict framework, 488, 489, 490, 494, 495. See also Conflicts Tactics Scale Family Education Rights and Privacy Act (U.S.), 172 “family first” policy (U.S.), 291, 307, 309 Family Support Act (U.S.), 303 Family Violence Option (FVO) (U.S.), 309 Family Violence Survey, 501n44

576

Index

FAO. See United Nations Food and Agricultural Organization FARC. See Fuerzas Armadas Revolucionarias de Colombia Federal Parent Locator Service (U.S.), 290 Fédération Femmes Administateurs, 255n80 Female Entrepreneurship Resource Point, 535n4 female heads of households (FHHs), 522, 546n100 Feminist Coalition, 281; women’s coalition versus, 273–76 feminist movements, x, xv–xvi, xxxi–xxxii, 36, 45, 125, 126, 210, 221, 222n10, 238, 331, 382, 411, 414, 432n95, 486, 509 feminist projects, xii, xiii, 202, 426–27 feminist rape myth discourse, 55–76; “accurate but ethically objectionable beliefs,” 60; conforming to, 61; consent and, 74; criminal justice system and, 65–66; facts/myths and 68–72; power/influence of, 64, 75; sexual autonomy and, 76 feminist risk narrative, 188, 189. See also heterosexual risk narrative feminists@law, 64, 65 Feminists for Life, 37 feminists of color, 129, 144, 145. See also people of color; women of color feminist theory, ix, xv, 3, 201, 215, 323, 325, 378 Ferguson, James, 524 Fernando, Mayanthi L., 324 Fillon, François, 252n49 financial precarity, 521–22, 529, 549n114 Finnigan, Judy, 60, 79n44, 80n63; criticism of, 61, 62, 67, 68; rape myth and, 61, 62, 63 First Information Report (FIR), 404n62 Five C’s: collaboration, compromise, collusion, complicity, and co-optation, xvii, xxvii. See also co-optation

Flat-Pack Peace, 483 Focus on the Family, 32 Folbre, Nancy, 541n52 Ford, Gerald, 298 Foucault, Michel, xii, xxiv, xxv, xxvi, xxxviin28, xxxviin35, 345, 380, 497n3, 554n160 Fourest, Caroline, 327, 337, 338 Four Implementing Agencies (Sri Lanka), 548n110 Fragility, Conflict, and Violence Unit (World Bank), 535n4 franco-français, 231, 244, 247, 250n23 Franklin v. Gwinnett County Public Schools, 175n15 Fraser, Nancy, xiv, 202 Fraser Committee (Canada), 267, 268, 269, 270, 275, 282, 284n15 Freedom Fund, 390 Freedom Party, 336 Freidan, Betty, 509 Freilich, Hannah, 98, 99, 111n66 French Constitution, 233, 322, 329 French Constitutional Council, 325 French National Assembly, 232, 233, 235, 238, 239, 241, 246, 249n17, 251n37, 252n49, 322, 334 Friedman, Milton, 542–43n64 Front National, 231, 318, 336, 338 Fuerzas Armadas Revolucionarias de Colombia (FARC), 437, 438, 439–40, 441, 443, 444, 446, 470n4 Fujimori, Alberto, 540n46 Fumento, Michael, 182, 183 Fundación Plan, 453 Fund for the City of New York, 107n10 GAD. See Gender and Development Garfinkel, Irwin, 300 Garner, Eric, 288 Garner, Maria, 72 Garzón, Luz Yanira, 453 Gaspard, Françoise, 232, 234, 235, 246, 247n1, 320, 321 GayCities​.com, 353

Index gay community, 349, 366n36 gay conditionality, xxix, 346, 362; advancing, 353–57, 359 gay governance, 344–63; emergence of, 346–47; exporting, 353–54; global, 346, 347, 353–61, 363; local, 351–53; national, 347–51; U.K., 353–61; U.S., 353–61 Gay International, the, 370n64 gay pride parade, 351, 352 gay rights, xxix, 346, 347, 348, 349, 350, 353–54, 356, 358–59, 362, 370n64 Gaza, 349, 350, 379, 479, 480, 482, 485, 496, 498n3, 498n8 Gee, Pauline, 128 G8. See Group of Eight gender, ix, xxvi, 288, 334, 339, 447, 450; actual/perceived, 426; debates about, 11; development and, 541n50; ideals of, 32; ontologies of, 277; policies about, 12; politics of, 31, 32, 418; sexuality and, 44, 192; theorizing, 23; universalism and, 250n21 Gender Action, 541n54 Gender Advisory teams, 201 Gender Analysis Framework, 430n58 Gender and Development (GAD), 24n2, 509, 510 gender-based violence, x, xviii, xx, xxi, xxxiii, 13, 48, 92, 93, 98, 101, 187, 188, 109n44, 193, 210, 211, 216, 456, 486, 496 gender bureaucrats, training, 452–53 Gender Empowerment Measure, 507 Gender Equality Strategy (World Bank), 512, 539n38 “gender-first” approach, 330, 331 Gender Global Entrepreneurship and Development Index, 521 gender identity, 209, 220, 250n21, 256n85, 360, 361, 368n49, 457, 469 gender parity laws, 317 Gender-Related Development Index, 507 Gender Roles Framework, 430n58 Gender School, 444, 447

577

Gender Subdivision, Social Development Program (Colombia), 452 gender training, 417, 418 gender-variant groups, xxi, 409, 424, 432n96 gender violence, 14, 22, 35, 186, 358, 449, 450 genital mutilation, xxi, 8, 15 genocide, 20, 22, 28n60 Gerger, Heiker, 59, 60 Gerin, André, 321, 333, 334 Gerin Commission (France), 319, 321, 325, 326, 327, 328, 334 German Program for Cooperation, 453 Gersen, Jacob, xxv Gersen, Jeannie Suk, xxv GF. See Governance Feminism GFeminism, xviii, xxii, xxvii, xxix, xxx, xxxi, xxxii–xxxiii, xxxiv, 399 GFeminists, xiii, xix, xxii, xxiii, xxvii, xxxv, 305, 306, 307, 309, 310, 311, 377, 393, 396, 397, 405n84 Ghosh, Swati, 405n81 Gingrich, Newt, 309 Giraldo, Hernan, 475n71 Giuliani, Rudolph, 85, 268 Global Equality Fund, 358 Global Exchange, 53n49 global North, xxxii, 5, 11, 524 Global Slavery Index (GSI), 390 global South, xxxi, 5, 8, 11, 362, 495, 514 Global Study. See Preventing Conflict, Transforming Justice, Securing the Peace: A Global Study on the Implementation of United Nations Security Council Resolution 1325 Global Summit to End Sexual Violence in Conflict, 21 GMH. See Grupo de Memoria Histórica Golden, Marty, 89 Goodman, Miriam, 92, 95, 102 Goodmark, Leigh, xix, xxi, xxii, xxiii, xxv, xxvii

578

Index

governance, xi, xiii, xviii, xxiii, xxiv, 85, 380, 382, 419; feminism and, 282, 398, 515–16, 516–20; Foucauldian understanding of, xxx–xxxi; global, 481, 507; international, xxxii, 486; movement to, 380–82; transnational, xxxi, xxxii Governance Feminism (GF), 85, 103–6, 174, 202, 322, 345, 378, 407–8, 416–17, 419, 423, 424, 519–28, 533, 535; addressing, 106, 203, 408; describing, xii–xvi, 180–81, 345; neo-abolitionist, 390–92, 393, 395; Pakistani, 408, 414, 415, 416–17, 422, 426, 531n75; projects, xiii, xviii, xix, xxii, xxv, 103; rise of, xix–xxi governmentality, xii, xxiv, xxv, 345, 380, 381, 384, 385, 399, 408, 410, 422–24, 427, 481. See also governance Government Equalities Office (U.S.), 57 Grameen Bank, 193 Grants to Encourage Arrest Policies programs (U.S.), 145, 149n1 Grassley, Charles, 143 grassroots organizations, 215, 216, 222n10, 294, 420, 422, 423 Green Line, 349 Greens, 330, 339 Grewal, Inderpal, 45, 53n41, 495 Grillo, Ralph, 328 Grono, Nick, 390 Gross, Aeyal, xxi, xxvii, xxix Group of Eight (G8), 21, 29n66 Grown, Caren, 538n23 Gruber, Aya, xxi, xxii, xxv, 18, 100, 146 Grupo de Memoria Histórica (GMH), 447, 448, 460 GSI. See Global Slavery Index Guardian, 59, 67 Gudia, 379, 403n55 guerrillas, 437, 438, 439, 440, 441, 447, 473n36 Gurnham, David, 72, 73, 74 Habib, Claude, 236 Habitat for Humanity, 548n110 Hacking, Ian, 188

Hafsa, Jamia, 420 Hague, William, 21 Hague Women’s Peace Congress, 209 Hale, Brenda, 325 Halimi, Gisèle, 233, 234, 236, 250n22, 250n29, 326, 333, 337, 338 Hall, Tondalo, 137 Halley, Janet, ix, xix–xx, xxi, xxvii, xxviii, 20, 29–30n70, 38, 58, 61, 106, 172, 180, 202, 345, 380, 409, 429n14, 470n6, 481, 487 Hamas (Gaza), 485 Hammami, Rema, xix, xxi, xxx, xxxiv, xxxv Hamzić, Vanja, xxi, xxx, xxxi H&M, 245 Hanna, Cheryl, 130 Hardt, Michael, 411 Harling, Guy, 187, 188 Harper, Deborah, 133 Harper, Stephen, 279, 281 Harris, Angela, 147 Hart, Barbara, 140 Harvard Analytical Framework, 417, 430n58 Harvard Institute for International Development, 430n58 Harvard Kennedy School, 305 Haskins, Ron, 306, 307 Haut Conseil à l’Égalité entre les Femmes et les Hommes (France), 254n73 Haynes, Margaret “Meg” Campbell, 303 headscarves: ban on, 319, 330, 332, 340n3; controversy over, 334; permissibility of, 320, 327; regulation of, 320–21; symbolism of, 337; wearing, 327, 328, 331, 332, 333, 335, 336, 339 Health and Human Services (HHS) (U.S.), 293, 302, 305 health care, 212, 306, 356, 357, 425 Health Ministry (India), 387 Healthy Masculinity Working Group (Ohio University), 170 Helms, Jesse, 37

Index Helpage Sri Lanka, 530 Hennette-Vauchez, Stephanie, 245 Heritage Foundation, 38 Herman, Didi, 35 Herman, Kristine, 100 Hersh, Lauren, 100 Hertzke, Allen D., 32 heteronationalism, 345. See also homonationalism heterosexuality, 15, 191, 192, 236 heterosexual risk narrative, xxvi, xxvii, 181, 188, 189, 192–94. See also feminist risk narrative HHS. See Health and Human Services Hilton Beach, 352, 353 HIV, 36, 44, 194, 275, 356, 377, 492; contracting, 182–88, 191; epidemic of, 180, 195; living with, 180, 195; preventing transmission of, 186, 190, 384, 398; risk/vulnerability for, 181, 187, 188, 189; sex workers and, 190, 384–86, 399; spread of, 183, 185, 186, 190, 387; transmission of, 181, 190, 192–93; VAW and, 187, 188. See also AIDS HIV Law Project, 183 HIV Mentoring and Evaluation Reference Group, 188 Holder, Eric, 149 Hollis, Brenda, 543n70 Home Ministry (India), 386–87 Home Office (U.K.), 57 home ownership. See land ownership homoglobalism, 346 homomunicipalism, 346, 351–53 homonationalism, xxix, xxxv, 344, 345, 347, 348–51, 352. See also heteronationalism homophobia, 345, 355, 357, 363, 373n97 homosexuality, 159, 281, 344, 347, 349–50, 354, 355, 358, 361, 368n51, 370n64 honor killings, 496 Horowitz, Michael, 37, 40 hostile-environment sexual harassment, 162, 163, 175n13, 175n17 Houllebecq, Michel, 243

579

House of Ruth, 91, 141 housing, xxxiv, 154n73, 521, 522–24, 530, 548n111 housing crisis, 523, 529, 536n6 housing programs, 522, 524, 525, 536n6 Howse, Robert, 553n153 HTICs. See Human Trafficking Intervention Courts Hudson Institute, 37, 38, 40 Huffington Post, 104, 114 Hughes, Donna, 37 Humanas, 451, 452, 454, 475n71 Human Development Report (UNDP), 507, 510, 538n28 humanitarian aid, 435, 466–67 humanitarianism, 48, 213, 214, 386, 480, 483, 485, 487, 524; militarized, 32, 42–47, 53n41 humanitarian issues, 49, 482, 485, 548n111 humanitarian law, 3, 13, 17, 18, 21, 544n72 humanitarian workers, 207, 526 Human Resources Subcommittee (U.S.), 300, 301, 302 human rights, xxxiii, 31, 188, 214, 217, 349, 356, 409, 416, 419, 469, 485, 487, 507, 511; advocates, 9, 18, 22, 436; agenda, 369n61, 420, 421; Christian, 33, 46; criminal prosecutions and, 22–23; discourses, 35, 359–61, 370n64; engagement with, 4–12, 13; international, xxxii, 3, 18, 19, 370n64, 417, 486, 531n75; LGBT, 347, 357, 358, 359–61; securing, 442, 458; structural bias feminism and, 8, 9–10; violations of, 7, 13, 14, 17–18, 19, 25n2, 40, 218, 350, 459; women’s, 3, 4, 6, 7, 12–21, 41, 53n41, 211 Human Rights Campaign, 356, 358, 364n14 Human Rights Constitutional Petition 63/2009 (Pakistan), 425 human rights law, 3, 4, 5, 7, 8–9, 224n38, 337, 346 human rights movement, xxxiii, 23, 215

580

Index

Human Rights Watch, 193, 360, 479–80, 486, 544n71 Human Trafficking Intervention Courts (HTICs) (New York), 83, 84–85, 86, 89–98, 98–103, 105–6, 117, 111n79, 116, 120, 122 Hurtado, María Cristina, 448 hyperincarceration, 142, 143, 144–45, 148, 285n23. See also incarceration Ibañez, Ana María, 465 ICAN. See International Civil Society Action Network for Women’s Rights, Peace, and Security ICC. See International Criminal Court ICF. See International Conflict Feminism ICTR. See International Criminal Tribunal for Rwanda ICTY. See International Criminal Tribunal for the Former Yugoslavia identity, 347; ethno-cultural, 412; gay, 370n64; Muslim women and, 325; national, xxix, 334; political, 412; racial, 250n21 IJM. See International Justice Mission IMF. See International Monetary Fund Immigration and Customs Enforcement (ICE) (U.S.), 135, 152n43 immigration law, violations of, 135 Immoral Traffic Prevention Act (ITPA) (India), 382, 384, 389, 392, 397; sex workers and, 383, 387 IMP. See Iniciativa de Mujeres por la Paz In an Abusive State (Bumiller), 47 incarceration, 33, 36, 123, 126, 133–34, 149, 179n76, 311. See also hyperincarceration INCITE! Women of Color Against Violence, 145 income-generation programs, 212, 524, 527 Independence Park (Tel Aviv), 352, 353 Indian Constitution, 383

Indian Housing Programme, 535n5, 547n105 Indian Housing Project, 526 Indian Parliament, 377, 386 Indian Penal Code (IPC), 382, 383, 390 Indian Supreme Court, 384, 385, 390, 403n55; Karmaskar case and, 387, 398; Prajwala and, 391 Indian Women’s Movement (IWM), xxxi, 378, 380, 388, 389, 393–99 inequality, xx, 31, 186, 255n81, 293, 421, 521 Iniciativa de Mujeres por la Paz (IMP), 444–45, 446, 454 Institute for Development Studies, 189 Institute of Policy Studies of Sri Lanka (IPS), 552n146 Institute of Women’s Studies, 504n71 Institut Français des Administrateurs, 254–55n78 Inter-American Court of Human Rights, 19, 437, 451, 453, 471n18 intercourse, 60, 166, 174n4, 182, 185 Internal Revenue Service (IRS) (U.S.), 290, 291 International Alert, 520 International Civil Society Action Network for Women’s Rights, Peace, and Security (ICAN), 521, 550n131 International Committee of the Red Cross (ICRC), 527 International Committee of Women for Permanent Peace, 203 international community, 419, 420, 482, 498n3 International Conference on Women in Mexico, 508, 511 International Conflict Feminism (ICF), 481, 507, 516–19, 520, 522, 528, 534, 543n70, 544n72 International Criminal Court (ICC), xii, 12, 18, 543n70, 544n73 International Criminal Tribunal for Rwanda (ICTR), 18, 20, 22, 543n70 International Criminal Tribunal for the Former Yugoslavia (ICTY), 12, 18, 20, 22, 543n70

Index International Crisis Group, 543n70 international development, 24n2, 409, 506, 507, 537n21. See also development International Federation for the Red Cross and Red Crescent Societies, 548n110 international financial institutions, 505–6, 528; anti-homophobia campaigns of, 364n11 International Gay and Lesbian Human Rights Commission, 358, 360 International Justice Mission (IJM), 43, 45 International Labour Organization, 515 international law, 3, 4, 5, 6, 13, 24n4, 35, 223n11, 484 International Law Commission, 12 International Monetary Fund (IMF), 531, 532, 540n46, 541n54, 552n144 International Organization for Migration (IOM), 453, 552n146 International Research and Development Center, 454 International Research Network on Violence against Women (IRNVAW), 494, 503n61 International Violence against Women Survey (IVAWS), 495, 503n68, 503n69 International Women’s Day (IWD), 269, 330, 339 Inter Press Service (IPS), 546n92 Interstate Commission. See Commission on Interstate Child Support intimate partner violence (IPV), 109n45, 135, 139, 187–88, 491 IOM. See International Organization for Migration IPC. See Indian Penal Code IPS. See Institute of Policy Studies of Sri Lanka; Inter Press Service IPV. See intimate partner violence IRNVAW. See International Research Network on Violence against Women

581

IRS. See Internal Revenue Service ISIS, 361 “Is It Possible That There is Something in between Consensual Sex and Rape . . . ​a nd That It Happens to Almost Every Girl out There” (Total Sorority Move), 166 Islam, 236, 244, 337, 412, 415, 420. See also Muslims; Muslim women Islamization, 409, 413, 415 Islamophobia, 23, 257n94 Israeli Foreign Ministry, 349 Israeli-Palestinian conflict, 349 issus de l’immigration, 244, 246 ITPA. See Immoral Traffic Prevention Act IVAWS. See International Violence against Women Survey IV-D agencies (U.S.), 290, 291, 295, 298, 300, 302, 303, 307, 311 IWD. See International Women’s Day IWM. See Indian women’s movement Jahangir, Asma, 415, 416, 432n99 Jama’at, 421 Jama’at-e-Islami, 421, 431n71 Jamal, Amina, 421 Jameela, Nalini, autobiography of, 395–96 James, Letitia, 89 Jannson, Mikael, 110n53 Jara, Alan, 475n63 Jaramillo, Bernardo, 438 Jaramillo Sierra, Isabel Cristina, xix, xxi, xxx, xxxiii, xxxiv, 476n80 Jensen, Geraldine, 294, 301–2, 303, 306 Jilani, Hina, 415, 432n99 Jinnah, Fatima, 412 Jinnah, Muhammad Ali, 412 Johnson, Carol, 344, 491 Johnson, Nancy, 309 Joint United Nations Programme on HIV/AIDS (UNAIDS), xxxiv, 188, 492 Jolie, Angelina, 21 Jospin, Lionel, 319–20, 322 Jubilee movement, 532, 553n151

582

Index

Judd, Ashley, 33 Judicial Training Board (U.K.), 68 justice, 33, 43, 146, 147, 208, 217, 221, 279 Kadirgamr, Niyanthini, 529, 536n6 Kafala system, 531 Kanyeredzi, Ava, 72 Kapur, Ratna, 190 Karmaskar case, 387, 398, 402n34 Keck, Margaret E., 486 Keetheswaran, Rupavathi, 546n92 Kelly, Liz, 62, 72 Kempadoo, Kamala, 38 Kennedy, David, 140 Kennedy, Duncan, 66, 71 Kennelly, Barbara, 296, 303 Kerry, John, 359 Khan, Begum Ra’ana Liaquat Ali, 413 Khan, Nighat Said, 416, 426 Khan, Shahnaz, 409, 417 Khattabi, Fadila, 246 Khedher, Anissa, 246 khwajasara, xxxi, 409, 424, 425, 426, 427, 431n92, 432n93, 432n97 Kim, Jim Yong, 369 Kim, Mimi, 128, 132 Kimball, Sheila, 133 kinship, 293, 296, 460 Kirimi, Sonia, 246 Kishor, Sunita, 187, 188 Klein, Naomi, 516, 542n64 Kley, Hanna, 59 Kluger, Judy, 90, 91, 94, 100–101 knowledge: development, 511–12; feminist circuits of, 422, 481; production, 470n8, 491 Kohler-Hausmann, Issa, 86 “KONY 2012,” 54n60 Kotiswaran, Prabha, xxi, xxx, xxxi, 180, 345 Krahé, Barbara, 69, 71, 72 Kristof, Nicholas, 33, 34, 544n71 Krueger, Ruth Gillie, 307, 308 labor, xi, xix, 10, 47, 94, 384, 390, 391 labor law, 383, 384, 392

labor market, 95, 332, 463, 466, 554n161 labor rights, prostitution and, 120 L’Affaire du Foulard, 320 Lagon, Mark, 37 laïcité, 234, 235, 245, 246, 250n22, 250n26, 319, 332 Lakeman, Lee, 274 Lal Masjid complex, 420 Lambert v. State, 140–41 Lamble, Sarah, 348 Lancet, 187 land ownership, xxxiv, 412, 437, 439, 506, 514, 518, 519, 520, 522, 523, 524, 525, 526, 529, 531, 539n41, 548n108, 548n110, 548n111 Land Ownership Bill (Sri Lanka), 540n43 land rights, 217, 512 Lang, Julius, 88, 89 La République en Marche, 231, 246 La Soumission (Houllebecq), 243 law-and-order measures, 266, 282 Law Commission of India, 397 Law 975 (Colombia), 446, 470n4, 557 Law 1448 (Colombia), 439, 450, 454, 471n11 law reform, 489; disposition toward, 396–97; feminist, xxxvn5, 263, 393; gender-related, 275; golden age of, 55; pro-gay, xxix; prostitution, 113 Lawrence v. Texas, 159 Lawyers Collective, 388 LEAF. See Women’s Legal, Education and Action Fund Lean In (Sandburg), 542n62 Lederer, Laura, 37 Lee, Angela, 39 Legal Aid Society, 85, 104, 112n80, 113 Le Gall, Anne, 321 Legal Momentum, 293. See also National Organization for Women Legal Defense and Education Fund Legler, Paul, 305, 306, 307 Leidholdt, Dorchen, 37, 51n21 Le Monde, 334 Lenning, Dorothy, 141

Index Le Pen, Marine, 231 Lépinard, Éléonore, 331 Lesbian, Gay, Bisexual, and Transgender Rights Program, 360 Lessons Learnt and Reconciliation Commission (LLRC) (Sri Lanka), 526, 527, 550n126, 550n127 Ley de Victimas (Colombia), 471n11. See also Law 1448 LGBT community, 315, 348, 350, 352, 363n3 LGBT Community Center, 352 LGBT groups, 339, 346, 358, 360, 361 LGBT people, 323, 345, 346, 348, 354–55, 356, 362, 363; human rights of, 347, 357, 358, 359–61 LGBT rights, 344, 345, 346, 347–48, 350, 351, 354, 358, 359, 360, 361, 367n45, 373n97 Li, Daryl, 485 liberal feminism, xx, xxvi, 38–39 Liberal government, 266, 267 liberal inclusion, 4, 5–6, 9, 246–47 liberalism, 322, 344, 420, 438, 444 Liberal Party, 475n63 Liberal Peace, 483, 484 Liberation Tigers of Tamil Eelam (LTTE), 547n102 libertarianism, 272 licensing reforms, 270 Liga de Mujeres Desplazadas, 454 Lippman, Jonathan, 83, 90, 98 “living off the avails” (procuring) law (Canada), 277 Lloyd, Rachel, 31 LLRC. See Lessons Learnt and Reconciliation Commission loans, 552n146, 553–54n156. See also credit; debt; microcredit; microfinance Local Authority guidelines, 548n108 Loi no 2004-228 du 15 mars 2004 (France), 320, 340n4 London School of Economics (LSE), xxii, 69; Law Department, 64, 65, 68 Long, Russell, 295, 296, 297 Long, Scott, 360, 361

583

Loose Women (television show), 60, 61 Lord’s Resistance Army, 54n60 Losing Ground (Murray), 297 Lower House of Parliament, 391 LSE. See London School of Economics M., Faiza, 321, 325, 334 MacGinty, Roger, 483 MacGuigan, Mark, 284n15 Machiavelli, Nicolò, 542–43n64 MacKinnon, Catharine, 7, 25n12, 28n60, 38, 159, 202, 207, 273, 279, 389, 404n69, 544n72 Macron, Emmanuel, 231, 243, 246, 247 Maggie’s (sex worker advocacy group), 271, 272 Maguigan, Holly, 146 Mahmood, Saba, 417, 420 Maine Coalition to End Domestic Violence, 133 Mak, Kanika, 541n52 Malik, Maleiha, xix, xxi, xxvii, xxix Malkin, Victoria, 88 Maloney, Carolyn, 40 Maloney, Maeghan, 133 mandatory-arrest laws, 129, 134, 139, 143, 146. See also no-drop prosecution Mann-Elkins White Slavery Act (U.S.), 35, 51n13 Manpower Demonstration Research Corporation, 301 marginalization, 336, 348, 362 marriage, xxi, 15, 44, 396, 448; same-sex, 33, 43, 279, 283n2, 334, 335, 346, 353–57, 362 Martin, Dianne, 19 Martin, Trayvon, 138 Martin-Breen, Bethany, 541n50 Marxism, xx, 395, 413 Maryland Court of Special Appeals, 140–41 Maryland v. King, 12 MAS. See Muerte a Secuestradores masculinist protection, logic of, 204–10, 215 masculinity, x, 45, 185, 242

584

Index

Massachusetts Department of Revenue, 302 Massad, Joseph, 370n64 Matsuda, Mari, 130 Matthew Shepard and James Byrd Hate Crimes Prevention Act (U.S.), 347 Maududi, Abul A’la, 431n71 Mazur, Robyn, 91, 92, 93, 95 McCarthy, Bill, 110n53 McDonald, Gabrielle Kirk, 543n70 McFarlin, Ben, 133 McLaren, Brian, 34 MEASURE DHS+, 492, 502n53 Meat Loaf, 65 Medellín, 437, 452, 453 media, 54n60, 60–61, 66–67, 119, 167, 170, 479 Medley, Donna, 127 Meertens, Donny, 478n101 MEI. See Micro Economic Initiatives men of color, 125, 144. See also African American men; black men; people of color Merry, Sally Engle, 481 Mesa de Trabajo Mujer y Conflicto Armado (MTMCA), 451, 452, 457, 458, 475n70 Metropolitan Police, 69 Mexico City Conference, 5, 508, 512 Mexico City NGO Tribune, 509 Michels, Shari, 101, 102 microcredit, 514, 515, 519, 522, 523, 525, 526, 530, 532, 542n58, 542n60, 555n125. See also credit; debt; loans; microfinance Micro Economic Initiatives (MEI), 527 microfinance, 529, 534, 536n6; initiatives, 192, 551n137, 551n140. See also credit; debt; loans; microcredit microfinance companies, 553n154, 554n156 Midtown Community Court (New York), 86, 88, 91, 93, 107n16; prostitution and, 87, 92 migration, xxix, 465, 552n146 Miles, Angela, 536n11

militarism, 208, 218, 219, 220; work against, 221–22 military occupation, 481–85, 498n3 Millennium Development Goals, 492, 507 Ministry of Child Development and Women’s Affairs (Sri Lanka), 550n126 Ministry of Women and Child Development (MWCD) (India), 386, 388, 390, 391, 392, 397, 403n55, 405n55 Ministry of Women’s Affairs (oPt), 496 Mittal Steel, 536n6, 549n114. See also Arcelor Mittal mixité, 238, 239, 241, 253n59 Model Penal Code (U.S.), 176n30 Mogulescu, Kate, xxii, 85, 98, 100, 103, 104–5, 106, 112n80, 113, 114 Mohan, Giles, 554n159 Mojica Enciso, Sandra Patricia, 453 monthly action points (MAPs), 201 moral crusade, 36, 267–68 moralism, 271, 279, 289, 534 moral standards, 85, 245, 312 Moreno Segura, Nancy Elizabeth, 453 Morgentaler, Dr., 284n21 Moss, Kevin, 345 Mouvement des entreprises de France (MEDEF), 254n78 Movement for Land and Agricultural Reform (MONLAR), 540n43 Moynihan, Daniel, 299, 300 Moynihan Report, 299 Ms. (magazine), 130 Ms. Foundation for Women, 146 MTMCA. See Mesa de Trabajo Mujer y Conflicto Armado Muerte a Secuestradores (MAS), 437 Mugisha, Frank, 362–63, 372n78 Mujeres, Cortes y Medios (Sierra and Sierra), 476n80 Mujeres que crean, 453 Mulroney, Brian, 270 Multilateral Investment Fund, 521 Mumba, Florence, 543n70 Mumbai High Court (India), 385

Index Mumtaz, Khawar, 411 Murray, Charles, 297 Murungi, Betty, 544n72 Musée des Arts Décoratifs, 237 Museveni, Yoweri, 356 Muslims, 231, 236, 237–38, 243, 247, 317, 327, 332, 412, 415 Muslim women, xxxvi, xxix, 28n60, 233–34, 237, 243, 324–29, 334, 336, 338, 339, 417, 421; “autonomy deficits” attributed to, 318, 325, 326 MWCD. See Ministry of Women and Child Development Myrdal, Gunner, 536n11 Mystery of Capital, The (de Soto), 540n46 Myth of the Heterosexual AIDS Epidemic: How a Tragedy Has Been Distorted by the Media and Politics (Fumento), 182 myths, 59–65, 66, 68–72 NAC. See National Action Committee on the Status of Women Nairobi World Conference on Women, 5, 8, 14, 15, 26n34, 510, 538n23 NALSA. See National Legal Services Authority National Action Committee on the Status of Women (NAC), 269, 270, 271, 275, 282 National Action Plan (Pakistan), 430n50 National Anti-Trafficking Bureau (India), 391 National Battered Women’s Law Project, 150n17 National Center on Women and Family Law, 129, 150n17 National Child Support Enforcement Association (NCSEA), 302, 305, 309 National Coalition Against Domestic Violence (NCADV), 125, 126, 127, 129 National Collective for Women’s Rights, 330

585

National Commission for Reparations and Reconciliation (Colombia), 446 National Commission for Women (NCW) (India), 384, 388, 392, 397 National Conference of Commissioners on Uniform State Laws, 303 National Council of State Child Support Administrators, 305 National Gender Profiles, 496 National Housing Development Authority (Sri Lanka), 548n110 National Human Rights Commission (India), 397 National Institutes of Health (U.S.), 183 nationalism, 329, 332–36, 338 National Legal Services Authority (NALSA), 391, 392 National Network for Safe Communities, 140 National Network of Sex Workers (NNSW), 384, 385, 386, 390 National Network to End Domestic Violence (NNEDV), 126, 145, 154 National Organization for Women (NOW), 39, 40, 51n22, 296, 297, 305; Legal Defense and Education Fund, 293 National Partnership for Women and Families, 293 National Planning Department (Colombia), 452 National Policy on Gender Fairness for Women (Colombia), 450, 452 National Registry of Information (Colombia), 460 National Registry of Victims (Colombia), 439 National Survey on Violence against Women, 490–91 National Task Force to End Sexual and Domestic Violence against Women, 143–44 National Women’s Law Center (NWLC), 129, 293, 300, 301, 308, 309 “National Women’s Machinery,” 496 Native Women’s Association (NWA), 274, 280–81, 285n25

586

Index

NCADV. See National Coalition Against Domestic Violence NCSEA. See National Child Support Enforcement Association NCW. See National Commission for Women Negri, Antonio, 411 Nelken, David, 405n81 neo-abolitionists, xi, xxii, 397, 398; sex workers and, 384–96. See also abolitionist feminists neocolonialism, xxxii, 9, 363 neoimperialism, xxxii neoliberal “harmonization” project, 424 neoliberalism, xviii, xix, xx, xxv, xxxi, xxxiv, xxxviii, 40, 41, 44, 45, 49, 96, 181, 189, 203, 288, 289, 407, 408, 410, 411, 415, 417, 419, 420, 422, 424, 426, 427, 428n3, 433, 449, 487, 507, 513, 515, 516, 518, 519, 524, 525, 528, 533, 534, 535n4, 540n46, 541n54, 542n60, 554n159 neoliberal model, 294, 297, 298, 300, 302, 305, 306, 307, 309, 311 Nesiah, Vasuki, xix, xxi, xxx, xxxiv, 29n69, 481 Netanyahu, Benjamin, 349 New Democrats, 304, 306 “New Law Begins to Recognize the Harm in Prostitution,” 280 New York Asian Women’s Center, 39, 42 New York City Council, 89, 97, 100 New York Court system, 92–93, 107n10 New York Daily News, 104, 114 New York Times, 33, 104, 114, 183, 282, 288, 362, 480, 538n35, 544n71 New Zealand Prostitution Law Reform Act, 282 NGOs. See nongovernmental organizations NGO Working Group on Women, Peace and Security (NGO Working Group), 200, 201, 204, 206 NGO World Vision, 545n88 Nicholson v. Williamson, 136

Nightline, 46 Ni Putes Ni Soumises (NPNS), 23, 250n29, 251n31, 320, 324, 327 Nirbhaya rape and murder case, 377, 388–90, 403n55, 404n67. See also Pande, Jyoti Singh Nixon, Richard M., 295 NNEDV. See National Network to End Domestic Violence NNSW. See National Network of Sex Workers no-drop prosecution, 130, 131, 133, 134, 139, 146. See also mandatory arrest non-consent, 56, 165. See also consent nongovernmental organizations (NGOs), xii, xiii, xix, xxiv, xxx–xxxiv, 8, 14, 33, 35, 36, 124, 129, 160, 161, 200, 204, 215, 216, 217, 218, 221, 331, 378, 379, 382, 414, 415, 418, 436, 444, 463, 469, 479, 514, 536; feminist, ix, 418–19, 435, 447–48, 451, 452–53, 454, 457, 458; international, ix, 226n76, 517; neo-abolitionist, 379, 380, 384, 385, 387–94, 396, 398; victim services by, 455 (table); women’s, 416, 422, 423, 425, 496, 550n131 Nordic model, 265, 274, 278, 283n5, 285n25 North and East Housing Reconstruction Programme (Sri Lanka), 535n5, 547n105 Norwegian Representatives Office, 479 Not for Sale Campaign, 53n49 “Not for Sale Freedom Store,” 46 Nowrajee, Binaifer, 544n71 NPNS. See Ni Putes Ni Soumises Nuremburg Tribunal, 12 NWA. See Native Women’s Association NWLC. See National Women’s Law Center Obama, Barack, xxv, 173; LGBT people and, 357, 358, 359 Obergefell v. Hodges, 367n45 Obiora, Leslye, 10 obscenity law, 268, 273

Index Observatoire de la parité, 249n18, 321, 322 Occupied Palestinian Territories (oPt), xxxiv, 348, 349, 350, 479, 480, 481, 495–97, 497n3 Occupy movement, debt and, 532 OCR. See Office for Civil Rights ODHA. See Owner-Driven Housing Assistance Odio-Bendito, Elisabeth, 543n70 Ofcom, 61 Offender-Focused Domestic Violence Initiative (North Carolina), 139 Office for Civil Rights (OCR) (U.S.), 162, 163, 164, 166, 167, 168, 171, 172, 173, 175n21, 176n33 Office for the Ombudsman (Columbia), 454 Office of Children’s Commissioner (U.K.), 72 Office of Faith-Based Initiatives (U.S.), 36 Office on Violence against Women (OVW) (U.S.), 92, 149n1 Ohio University Annual Security Report, 170 Olarte, Angélica Fabiola, 453 Olsen, Frances, 255n78 One School for All Collective, 330 Ong, Aihwa, 10 Ontario Coalition for Abortion Clinics, 284n21 Ontario Court of Appeal, 275 On the Equal Representation of Men and Women on Boards of Directors and Supervisory Boards and Professional Equality (Law 2011-103) (France), 239 “On Torture” (MacKinnon), 7 Open Debate on WPS, 204 Open Society Justice Initiative, 543n70 opinions, myths and, 59–65 oPt. See Occupied Palestinian Territories ORC Macro, 492 Ordonez, Alejandro, 473n36

587

Organización Femenina Popular, 446, 454 Organization of Islamic Countries, 368n49 Ormond, Julia, 33 Orozco, Iván, 441 Oslo Accords, 483, 484, 485 Otto, Dianne, xxii, xxiii, xxxiii; Fraser and, xxxvin14, 29–30n70, 202 Ouzouf, Mona, 236 overcriminalization, racial impact of, 179n75 OVW. See Office on Violence against Women Owner-Driven Housing Assistance (ODHA) (Sri Lanka), xxxiv, 507, 520, 522–28, 506, 529, 530, 536n6, 547n106, 549n114, 550n131 Owner Driven Reconstruction Collaborative (Sri Lanka), 548n111 PA. See Palestinian Authority Pacey, Katrina, 284n20 Pakistani Penal Code, 423 Pakistan People’s Party (PPP), 412, 416 Palacio Palacio, Jorge Ivan, 473n36 Palermo Protocol. See United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children Palestine Liberation Organization, 483 Palestinian Authority (PA), 481 Palestinian Central Bureau of Statistics (PCBS), xxxiv, 479, 486, 495, 496 Palestinian National Authority (PNA), 479, 480, 482, 484, 497, 498n8 Palestinian Security Forces, 499n16 Palestinian Territories, occupation of, xxix, xxxiv, 483–85 Palomino, Sonia Sylvana, 453 Pande, Jyoti Singh: rape and murder of, 377, 388–90, 403n55, 406n67. See also Nirbhaya rape and murder case Pandolfi, Mariella, 484 paramilitary organizations, 436, 437, 438–39, 440, 441, 443, 444, 447, 454 parental leave laws, 256n87

588

Index

Parent Locator Service (U.S.), 295, 304 Parité (France), 230, 236, 237, 238, 241, 247, 252n49, 253n64, 317, 319, 326, 329, 331, 335, 353n49; campaign for, 318, 322, 330, 332, 333, 337, 339; CBQ and, 239–40, 242, 243, 244; feminism and, 231, 232–33, 234, 240, 249n18; veilings and, 317, 319–22, 322–38, 335, 338 Partition of India, 408, 412 Pastrana, Andrés, 446 Pate, Kim, 274, 275, 281, 285n25 paternalism, 233–34, 237–38, 404n67 paternity identification program (U.S.), 291, 302 Paternotte, David, 344 patriarchy, ix, 126, 185, 410, 421, 434, 435, 444, 459, 465, 495 Patriotic Union, 438 Paulin, Amy, 90 PCBS. See Palestinian Central Bureau of Statistics peace, 206, 219, 220, 221, 444–47; agreements, 211, 436; feminist logic of, 201, 208, 210–15, 216, 220 peace building, 210, 213, 218, 483, 484, 518, 519; sexual violence and, 207; women’s participation in, 228n131 peacekeeping, 205, 220 peacemaking, 212, 213, 218 peace movements, 211, 215 peace negotiations, 210, 211, 219, 484; women’s participation in, 228n131 Peace Tent, 8 Pedraza, Daniel, 137 Pedraza, Victoria, 137 Pence, Ellen, 127–28, 129 Penny, Cheryl, 287 people of color, 41, 129, 171, 172, 348; hyperincarceration of, 142, 144. See also feminists of color; men of color; women of color Pérez, Alma Viviana, 448, 474n53 Perez-Rivera, Maria, 135 “Performance-Based and Goal-Driven Roadmap to Peace,” 485, 486

Permanent Assembly of Civil Society for Peace, 445–46 “Permanent Transition,” 484 Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) (U.S.), 110n61, 306, 307, 312; child support and, 293, 302; reforms by, 289–90 physical violence, 479, 491, 495, 503n69; sexual violence and, 70 PIL. See public interest litigation Pillay, Navi, 12, 13, 18, 26n26 pimps, 37, 39, 41, 95, 98, 385 Pink Panthers, 330 pinkwashing, 348–51, 364n3 PIVOT Legal Society, 272, 273, 275, 284n20 Plan Colombia, 438 Planned Parenthood, 444 Plan of Action to Combat Trafficking and Commercial Sexual Exploitation of Women and Children (Plan of Action) (India), 384–85 PNA. See Palestinian National Authority police, 119, 266, 370n64, 348, 397, 414, 484, 487 political elites, 330, 332–36 political mobilization, theory of, 398 political movements, nationalist/ far-right, 319 political representation, 48, 441, 459 political society, xxx, xxxiii, 379, 380, 382. See also Chatterjee, Partha politics, xiv, xvii, xviii, xix, 12, 32, 33, 38–39, 43, 44, 47–49, 102, 202, 203, 218–19, 221, 273, 275, 309, 318, 319, 321, 324, 329, 333, 335, 352, 338, 366n36, 373n97, 379, 380, 393–96, 414, 416, 418, 420, 421, 423 “Politics as a Vocation” (Weber), xvi, xvii Politics of Governed, The (Chatterjee), xxx Politique des Sexes (Agacinski), 330 pornography, xxi, 16, 17, 35, 36, 73, 170–71, 267, 268

Index postcolonialism, xxvi, xxix, xxx, xxxii, 356, 428n3 postcolonial state, xix, xxx, 380, 388 postcolonial thought, xix, xxxi, 203, 380, 383, 428n3 poverty, 16, 31, 39, 110n53, 114, 149, 170, 289, 294–95, 297, 301, 305, 311, 340, 358, 443, 444, 462, 463–66, 467, 510, 515, 519, 521, 542n58; black, 296, 299, 300, 312n4 poverty-law organizations, 272 power, ix, xii, xv, xviii, xxiii–xxvii, xxxii, xxxviin35, 147, 193, 242, 275, 280, 318–19, 326, 336, 339, 347, 423, 428n7, 465, 482, 483, 485, 486, 487, 488, 496–97 Power, Samantha, 45, 213, 361 PPP. See Pakistan People’s Party Prajwala, 379, 385, 391, 403n55 pregnancy, 474n58; forced, 18, 448 Prerana, 379, 385, 403n55 Presidential Program for the Care of Victims of Landmines, 439 President’s Emergency Plan for AIDS Relief, 186 “Pretty Woman Myth, The” (Maloney), 40 Preventing Conflict, Transforming Justice, Securing the Peace: A Global Study on the Implementation of United Nations Security Council Resolution 1325 (UN Women), 204, 210, 215–16, 218, 219, 220, 221, 228n129, 229n153, 516–17, 543n66 prevention programs, 170–71, 177n58 Priority Enforcement Program (PEP), 152n43 Profamilia, 444 “Profits of Pimping: Abolishing Sex Trafficking in the United States, The” (Hughes), 37 Progressive Conservative government, 270 property rights, 217, 512, 513–14, 515, 518, 519, 521, 539n41, 541n50, 541n52 property title, 512, 513, 540n46 prosecution rates, xx, 131, 132, 265, 266

589

prostitution, x, xxi, xxxi, 17, 35, 37, 38, 39, 40, 44, 47, 51n22, 84, 86, 87, 89, 95, 96, 98, 113, 118, 269–70, 271, 277, 278, 387, 389, 403n55; addressing, 41, 83, 85, 88, 89, 101, 105; advocating abolition of, xi, 50n3, 274, 386; arrests for, 91, 100, 103, 119; charges, 103–4, 114; criminalizing, 90, 265; decriminalizing, 27n42, 101, 102, 106, 269; defining, 88, 102, 271; DV and, 91, 93; sex trafficking and, 50n5, 89, 90, 94, 97, 104, 106, 120, 390; sex work and, 120, 378 prostitution defendants, 84, 85, 91, 93, 99, 100, 102, 105–6, 113, 114 prostitution diversion courts, xxii, 83–112, 113–23 prostitution laws, 266, 277, 281; feminist involvement in, 267–71; reforming, 113, 263, 264–67 Protection Against Harassment of Women at Workplace Act (Pakistan), 423 Protection of Communities and Exploited Persons Act (Canada), 265, 279 PRWORA. See Personal Responsibility and Work Opportunity Reconciliation Act Puar, Jasbir, 344 public assistance, 97, 110n61, 287, 289, 290, 291, 296, 308, 310, 311 public defenders, 122, 123 public health, xii, xxxii, 180, 181, 194 public interest litigation (PIL), 384, 385, 388 public/private distinction, xxiii, 7, 8, 23, 24n9, 24n11, 126 public sphere, xxvii, 49, 101, 546 Putting Women First (WHO), 503n61 “quality of life” crimes, 85 “Queen Boat” case, 370n64 queer critique, 347, 348, 352 queerness, in Israel/Palestine, 364n3 Quinn, Thomas, 182

590

Index

quotas: feminism and, 248n3; gender, 317, 321, 322, 329, 332, 333, 334, 335, 336, 339; Parité and, 253n64, 329; sex, 230–47, 256n88. See also corporate board quotas race, 172, 312, 323, 331, 465, 500n26 racism, 8, 125, 132, 172, 324, 327, 329, 336, 337, 338, 339 radical feminism, 6, 277, 389, 394, 400n4, 487 Ramos, Norma, 97 Rankin, Katharine N., 542n60 Rao, Rahul, 354, 372n79 rape, x, xi, xxi, xxxi, 14, 15, 16, 17, 18, 19, 20, 21, 22, 28n60, 29n67, 55, 56, 57, 58, 61, 62–63, 66, 69, 70–71, 74, 99, 161, 162, 166, 169, 174n4, 179n75, 377, 388, 389, 393, 396, 398, 399, 405n80, 460, 494 Rape Crisis Centres, 67 Rape Crisis England and Wales, 61, 63, 67 rape laws, xxv, 56–58, 380; reform of, 58, 377, 389, 392–93 rape myths, xxii, 55–56, 56–68, 70–71, 72–75, 76 rape victims, 57, 62, 63, 66–67, 69 Rashid, Tahmina, 418, 422 Raymond, Janice, 379 Reagan, Ronald, 38, 297–98 Rebouché, Rachel, ix, 180, 345 reconstruction: economic, 519, 522, 528; housing, 522, 523, 524, 525; infrastructure, 522; postconflict, 207, 218, 511, 516, 517, 518, 523, 524, 525; women as agents of, 522–23 Red Hook Community Justice Center (RHCJC) (Brooklyn), 88 redistribution, 210; class-based, xxxiv; economic, 434, 509; state-based, xxii; transitional, 469 red-light districts, 47, 53n49 “Red-Light Rescue,” 46 Red Nacional de Mujeres, 444 Red Umbrella Project, 111n79 Reece, Helen, xxii, xxv, 64

Reed, Bruce, 305 Reference Re ss. 193 and 195 of the Criminal Code of Canada, 1 SCR, 270 refugee camps, 205, 496 refugees/asylum seekers, LGBT, 357 Reilly, Niamh, 13 reparations, 147, 210, 218, 434, 436, 439, 442, 443, 447, 448, 453, 467, 469; collective, 449, 450, 474n60 Reproductive Health survey, 492 reproductive rights, 15, 37, 180, 212, 451 Republique en Marche party, 243 resistance, xvi, xviii, xxx, 18, 201 Resolution on Extrajudicial, Summary, or Arbitrary Executions. See United Nations General Assembly Resolution on Extrajudicial, Summary, or Arbitrary Executions Resolution on Human Rights, Sexual Orientation, and Gender Identity. See United Nations Human Rights Council Resolution on Human Rights, Sexual Orientation, and Gender Identity responsibility, xxviii–xxix, 15, 64, 69, 253n64, 296, 299, 310, 462; ethics of, xvi–xviii revisionist framing, 440, 443 Richie, Beth, 144, 145, 146, 148 Right to Buy program (U.K.), 540n44 risk narrative. See feminist risk narrative; heterosexual risk narrative Rittich, Kerry, xiv, 193, 513, 547n103 “Roadmap” (World Bank), 512 Roberts, Dorothy, 146 Rockefeller Foundation, 541n50 Roithmayr, Daria, 335 Rojas Pinilla, Gustavo, 435, 470n7 Rome Statute, 20, 21, 27n42, 446 Rosenblum, Darren, xix, 335 Rosenfeld, Diane, 389 Rosen-Zvi, Issi, 351 Rossignol, Laurence, 244–45 Roukema, Marge, 296, 303

Index Roy, Ananya, 192 RPM. See Ruta Pacifica de Mujeres rule of law, 442, 482 “Rural women in Sri Lanka’s postconflict rural society” (FAO), 521 Russell, Yvette, 59, 60 Russian Federation, 214 Ruta Pacifica de Mujeres (RPM), 444, 445, 446, 453, 454, 472n33 Rutgers Center for Global Women’s Leadership, 500n26 R v. Bedford, 266, 271–77, 281, 284n17, 284n20, 285n25, 285n31 R v. Butler, 273, 276 R v. Hutt, 267, 269 Sachs, Wolfgang, 524 Safe Harbor laws, 119 Sahgal, Gita, 544n71 Sahin, Leyla, 324 Saigol, Rubina, 417, 419 Salvation Army, 43 Sánchez, Gonzalo, 447 Sánchez, Martha Lucía, 453 Sánchez, Olga Amparo, 445 Sanctuary for Families, 92, 96 Sandburg, Sheryl, 542n62 Sanghani, Radhika, 67, 68 Sanguinetti, Michael, 71, 72 Sanjog, 379, 403n55 Santana, Feidin, 288 Santos, President, 450 SAPs. See Structural Adjustment Programs Sarkozy, Nicolas, 235, 246, 329, 332, 333, 334, 336 Satyarthi, Kailash, 387 savings groups, 530 Scarred Bodies, Hidden Crimes (Amnesty International), 457 School on Gender Studies, 453 Schroeder, Patricia, 308, 396 Scott, James, 524, 548n113 Scott, Joan Wallach, 251n30, 323, 333, 336 Scott, Val, 271, 283n1 Scott, Walter, 288, 289

591

Scott v. Hart, 128 SCSL. See Special Council for Sierra Leone SDC. See Swiss Agency for Development and Cooperation Sears, Helen, 89 secularism, 233, 319, 320 Secure Communities, 135, 152n43 security, xii, 206, 217, 264, 487, 527; housing, 529; international, 206, 220 Security Council Resolution. See United Nations Security Council Resolution security of occupancy, 513 security of the person, charter guarantee of (Canada), 264 Security Sector Reform (SSR), 483 Sedgwick, Eve Kosofsky, xxxvin35 self-defense groups, 436, 437 self-determination, 117, 481, 484 self-employment, 530, 531, 546n92 self-reliance, 297, 519 Sellers, Patricia Viseur, 543n70 Sen, Gita, 145, 510, 512, 538n23, 538n28 Seneca Falls Declaration of Sentiments, xiii Sentencia T-025 (Colombia), 457 Sentencing Reform Act (U.S.), 142 Sentencing Reform and Corrections Act (U.S.), 142 Serita, Toko, 90, 101, 102 Servicios Especiales de Vigilancia y Seguridad Privada (CONVIVIR) (Columbia), 437 Sethe, Shanthi, 551n140 Sevran-Schreiber, Claude, 247n1, 321 sex bureaucracy, 160–61, 161–64, 173, 174, 174n6 sex discrimination, 162, 163, 175n13; education and, 161; engagement in, 164 sex equality, 241, 242, 250n26, 255n79 sex industry, 383, 392, 395 sex panic, 29n69 sex policy, zero-tolerance, 207, 214 sex radicals, 396

592

Index

sex trafficking, 17, 32, 36, 37, 41, 42, 45, 49, 50n5, 53n49, 83, 89, 109n51, 202, 266, 377; campaigns against, 16, 31, 34, 39, 40; DV and, 93, 94, 109n44, 111n66; genealogy of, 33–36; prostitution and, 50n5, 89, 90, 94, 97, 104, 106; victims of, 90, 91, 104–5, 106 Sex Trafficking Unit (Brooklyn), 100 sexual assault, xxiv–xxv, 71–72, 92, 99, 114, 159, 161, 162, 163, 165, 167, 169, 171, 176n30, 177n47, 179n77, 488 Sexual Assault Referral Center (U.S.), 57 sexual conduct, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 172, 173, 174n5, 179n76. See also sexual misconduct sexual dominance, 7–8, 12, 15, 18, 48 sexual exploitation, 51n10, 97, 114, 207, 379, 388, 390, 391, 394, 396, 402n49 sexual harassment, x, xxv, 159, 160, 161, 162, 163, 164, 167, 169, 174n5, 175n11, 175n13, 175n15, 175n16, 396, 423 sexuality, x, xxvi, 10, 23, 31, 44, 165, 170, 181, 188, 189–92, 207, 263, 323, 346, 347, 351, 370n64 Sexual Minorities Uganda, 356, 362 sexual misconduct, 160, 162, 163, 164, 165, 166, 167, 168, 172, 173, 179n76. See also sexual conduct sexual morality, xxviii, 38, 171, 173 Sexual Offences Act (U.K.), 57, 74 Sexual Offences (Amendment) Act (U.K.), 56 sexual orientation, 360, 361, 368n49, 465 sexual slavery, xxi, 7, 15, 16, 17, 18, 27n43, 32, 33, 34–35, 38, 40, 42, 46, 47, 50n3, 51n10, 115, 382, 400n6, 448 sexual violence, x, xviii, xx, xxi, xxiii, xxviii, xxxiv, 4, 12–21, 23, 25n12, 29n69, 34, 48, 59, 70, 101, 159, 161, 162, 164, 166, 169, 170–71, 173, 174, 178n64, 220, 226n73, 393, 395, 398, 439, 448, 449, 452, 454, 456, 462, 464, 467, 479, 497n2, 516, 517, 518;

addressing, xx, 22, 40, 41, 160, 218, 394; armed conflict and, xxi, 205, 206, 207, 217, 457–58, 476n72; criminalization of, 21, 29n67, 214; GF and, 202–6, 207, 209, 210, 211, 212, 214, 214, 215–17; risk of, 170, 172, 208, 457–58; United Nations Security Council Resolutions on, 204–10, 211, 212 sex work, xi, 99, 120, 189, 202, 207, 272, 276, 277, 377, 379, 389, 392, 394, 395, 404n69; criminalization of, xxviii, 83, 263, 378, 380, 387, 396, 397, 398; decriminalization of, 263, 265, 283n5, 285n25; explaining adult involvement in, 110n53; trafficking and, 383, 384, 386, 389, 393, 399 sex worker organizations, 102–3, 190, 266, 271, 281, 282, 378, 384, 395, 398 sex workers, xi, xxi, xxxi, 37, 38, 39, 41, 47, 49, 50n8, 84, 102–3, 120, 182, 190–91, 192, 264, 265, 266, 270, 271, 272, 274, 275, 276–77, 278, 285n25, 378, 379–80, 382, 383, 384–92, 394, 395–96, 399, 405n84, 426; activism of, xxxi, 282; criminalization of, 266, 396, 397, 398. See also sex work sex-work laws, 267, 269, 276–77, 278–81 Sex Work Policy Group, 283n1 Shah, Prakash, 328 Shaheed, Ferida, 407, 411, 413, 427n1 Shakti Vahini, 379, 385, 388, 391, 394 Shamir, Hila, 180, 345 Shaw, E. Clay, 300, 309 Shepard, Matthew, 347 Shepard, Melanie, 129 Sherman, Lawrence, 128–29 Shih, Elena, 47 Shock Doctrine, The (Klein), 516 Shulevitz, Judith, 176n29 Siebler, Frank, 59 Sierra, Alfonso, 476n80 Sikkink, Kathryn, 486 Simon, Patrick, 340n3 Sisma Mujer, 444, 451, 452, 454, 477n94 SITA. See Suppression of Immoral Traffick in Women and Girls Act

Index “Six Stubborn Myths about Cancer” (Guardian), 59 Slager, Michael T., 288 Sledziewski, Elisabeth G., 321 Smarter Sentencing Act (U.S.), 143, 144 Smith, Brenda V., 129 Smith, Marilyn Ray, 302, 307, 308, 309 Smolenski, Carol, 108n26 social conservatives, xx, xxviii, 39, 298, 306, 307, 309, 431 socialist movement, 412, 421 Socialist Party, 247, 320, 322 social life, x, 216, 235, 425 social movements, xxi, xxvii, xxxii, 125, 307, 331, 393, 443, 486, 524, 553n55 Social Science and Medicine (journal), 186 Social Security Amendments (U.S.), 290, 298 social welfare model, xx, 96, 294, 295, 297, 298, 299, 300, 301, 302, 304, 305, 306, 308, 309, 311 social work, 83, 85, 95, 383, 418 “Societal Myths,” 65 sodomy, 159, 174n2 soft law, 381, 399 Solicitor General’s Office (Colombia), 454 SOS Racisme, 233 sovereignty, 481–85, 485–86 Spanish Program for Cooperation, 453 Special Council for Sierra Leone (SCSL), 543n70 Special Declaration on Bosnia and Herzegovina (United Nations World Conference on Human Rights), 18 Specialized Private Surveillance and Security Forces (Columbia), 437 Special Juvenile Police Units (India), 387 Special Peace and Justice Tribunals (Columbia), 451 Spivak, Gayatri, 410, 417 Sri Lanka Women’s Development Services Co-operative Society, Ltd., 530

593

SSI. See Supplemental Security Income SSR. See Security Sector Reform Stachowiak, Bonni, 37 Stack, Carol, 296 “stand-your-ground” defense, 138–39 Stanko, Betsy, 69, 70–71 Stark, Evan, 127, 491 Stasi, Bernard, 320, 325 Stasi Commission (France), 320, 321, 325, 327, 328, 334 state building, 482, 483, 484 State Council (Colombia), 473n36 state feminism, xxxiii; CBQ and, 238–41 Steele, Abbey, 465 Steinem, Gloria, 379 STEPS to End Family Violence, 92 Sterling, Andrea, 283n7 Stewart, Colin, 362 St. James, Margo, 27n42 Stokke, Kristian, 554n159 STOP Trafficking & Oppression of Women & Children, 145, 149n1, 388 Strategic Planning Unit (Sri Lanka), 545n88 “Strategic Sisterhood or Sisters in Solidarity?” (Ong), 10 structural adjustment, xxxii, 178n74, 515, 522 Structural Adjustment Programs (SAPs), 514 structural bias feminism, xx, 4, 6–8, 8–10, 17, 18, 20, 21, 22, 23, 24n4, 30n70 subordination, x, xxvi, 14, 28n62, 207; sexual, xxxiii, 7–8, 12, 17, 20, 202 Subramaniam, Gopal, 389 Suchland, Jennifer, 16, 17 suffering, men’s/women’s compared, 459–62 Suk, Jeannie, xxv, 141 Suk, Julie, 259n117 Sullivan, Barbara, 276 Supplemental Security Income (SSI) (U.S.), 183

594

Index

Support to Conflict-Affected Persons through Housing in Sri Lanka, 535n5, 547n105 Suppression of Immoral Traffick in Women and Girls Act (SITA) (India), 382, 383 Supreme Court of Canada, xxviii, 263, 264, 265, 267, 270, 271, 275, 276–77, 278–81 Supreme Court of Pakistan, 425 Sustainable Development Goal, 507 Swiss Agency for Development and Cooperation (SDC), 479, 535n5, 542n61, 547n105, 548n110 Tabarot, Michèle, 252n49 Take Back the Night (Lederer), 37 Taliban, 336 Tamayo, Paola, 453 Tamil, Sinhalese and, 546n102 Tamil Tiger Rebels, xxxiii Task Force on Family Violence (U.S.), 127 Tecci, Albert, 287, 288 Tecci, Joan, 287 Tehrik-e-Khawateen, 414 Teigen, Mari, 253n60 Tel Aviv, 351; gay pride parade in, 352–53; LGBT community in, 350 Tellez, Vicente, 135 Temkin, Jennifer, 69 Thatcher, Margaret, 540n44 third sex, 256n85, 432n92 Third World, 4, 8, 189, 192 Third World feminism, 8–12, 17, 23, 25n17, 409–10, 509 Thomas, Chantal, xi Thrift, Nigel, 432n97 Thurman, Charles, Jr., 128 Thurman, Tracy, 128 Thurman v. City of Torrington, 128 Ticktin, Miriam, 38 Tinker, Irene, 509 Title IX (U.S.), xxv, 161, 162, 163, 166, 168, 175nn13–17, 175n21 Title VII (U.S.), 175n13

Torrington Police Department (Connecticut), 128 torture, 7, 16, 437, 448, 460, 461 Total Sorority Move, 166 tourism: gay pride, 349, 352–53; humanitarian, 53n49; sex, 16 trafficked women, 31, 32, 388. See also trafficking traffickers, 32, 39, 99, 100, 121, 385 trafficking, x, xi, xxi, xxxi, 17, 31, 34, 35–36, 37, 44, 45, 46, 48, 49, 52n30, 85, 90, 92, 94, 95, 98, 105, 266, 377, 378, 381, 383, 387, 391–92; combatting, 83, 102–3, 379–80, 388; criminalization of, 379, 380, 388; discourse, 114, 118, 119, 122; domestic forms of, 41, 49; drug, 438, 439; eliminating, 99, 386, 389; experiencing, 115, 120–21; legal provisions addressing, 114, 382, 388, 390, 391, 399, 403n55; prosecution for, 84, 386; prostitution and, 50n5, 120, 390; radical feminism and, 389; rape and, 393, 398; sex work and, 383, 384, 386, 389, 399; term, 35, 50n10, 115, 384; victims of, 39, 47, 49, 83, 88, 90, 97, 100, 103–4, 113–18, 120 Trafficking Bill (India), 390, 391, 394, 399, 405n84 Trafficking in Persons Office (U.S.), 37 Trafficking in Persons (TIP) Reports (U.S.), 386, 388, 390, 399 Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill (U.S.), 391 Trafficking Victims Legal Defense Advocacy Project, 104, 105, 113–14 Trafficking Victims Protection Act (U.S.), 186 Trafficking Victims Protection and Justice Act (TVPJA) (U.S.), 90, 94, 108n32 TransEquality Uganda, 356 transgender, xiv, 118, 274, 323, 344, 348, 354, 360 Transgender Persons (Protection of Rights) Act (Pakistan), 432n92

Index transition, 47, 428n3, 436, 441, 469; political, 422; promise of, 441; social, 422 Transition: Colombian, 434, 435–40, 447, 456, 459, 466, 470n4; feminists in, 443–54, 456–59; framings for, 434, 440–43; main actors in, 436–38 Tremblay, Manon, 344 Trudeau, Justin, 281 Trudeau, Pierre, 269, 281 Trump, Donald J., xvi, 173, 359 Tulkens, Françoise, 325 TVPJA. See Trafficking Victims Protection and Justice Act “2010 Stern Review: A Report by Baroness Vivian Stern CBE of an Independent Review into How Rape Complaints Are Handled by Public Authorities in England and Wales” (U.K.), 57 UARIV. See Unit for the Attention and Reparation of Victims UEPT. See Collectif Une Ecole pour Tous et Toutes Ugandan Constitutional Court, 357 UIFSA. See Uniform Interstate Family Support Act U.K. Supreme Court, 324, 325 UMP. See Union pour un Mouvement Populaire UN. See United Nations UNAIDS. See Joint United Nations Programme on HIV/AIDS Undoing the Demos (Brown), 534 UNDP. See United Nations Development Programme Unemployed Parent Program (U.S.), 301 unemployment, 146, 148, 299, 301 UNFPA. See United Nations Population Fund UN-Habitat, 523, 525, 530, 533, 542n61, 548n110, 550n125 UNICEF, xxxiv, 492 UNIFEM, 486, 496

595

Uniform Interstate Family Support Act (UIFSA) (U.S.), 292, 303 Unión Patriótica (UP), 438, 441, 471n18 Union pour un Mouvement Populaire (UMP), 238, 247, 252n49, 320, 332, 334, 335, 336 Unión Sindicalista Obrera (USO), 445, 446 United Nations (UN), xii, xix, xxi, xxiii, 35, 207, 214, 216, 217, 219–20, 221, 359–61, 417, 425–26, 449, 481, 492, 509, 517, 522, 527 United Nations Charter, 213 United Nations Commission on the Status of Women, 51n21 United Nations Conference on Disarmament, 215 United Nations Conference on Women, 416, 430n50 United Nations Convention for the Suppression of the Traffic in Persons and of Exploitation of the Prostitution of Others, 382 United Nations Decade for Women, 508 United Nations Development Programme (UNDP), 192, 423, 453, 507, 509, 510, 513 United Nations Division for the Advancement of Women, 12–13 United Nations Economic Commission for Europe (ECE), 494, 536n11 United Nations Entity for Gender Equality and the Empowerment of Women (UN Women), xxxiii, 186, 217, 453, 486, 512, 539n37 United Nations Food and Agricultural Organization (FAO), 512–13, 521, 546n98, 551n133 United Nations Fourth World Conference on Women, 11 United Nations General Assembly, 12, 188, 349, 359 United Nations General Assembly Resolution on Extrajudicial, Summary, or Arbitrary Executions, 359

596

Index

United Nations High Commissioner for Human Rights, 12, 360, 543n70 United Nations Human Rights Council, 360, 368n49 United Nations Human Rights Council Resolution on Human Rights, Sexual Orientation, and Gender Identity, 359–60 United Nations Office on Drugs and Crime, 379 United Nations Population Fund (UNFPA), xxxiii, xxxiv, 492, 496, 502n53, 510 United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol), 49, 51n10, 381–82, 384, 386, 388, 390, 403n55 United Nations Security Council, xxiii, xxxiii, xxxvin14, 21, 200, 201, 203, 204, 205, 206, 207, 208, 210, 212, 213, 214, 216, 220, 228n19, 361, 516, 517 United Nations Security Council Resolution 808: 18 United Nations Security Council Resolution 1325: 200, 201, 204, 210, 211, 215, 216, 218, 220, 224n38, 226n76, 516–17, 518, 520, 545n89, 550n131; gender dimensions and, 521; impact of, 543n66 United Nations Security Council Resolution 1385: 482 United Nations Security Council Resolution 1820: 204, 205, 206, 209 United Nations Security Council Resolution 1888: 206, 209 United Nations Security Council Resolution 1889: 202, 518, 544n76 United Nations Security Council Resolution 1960: 206 United Nations Security Council Resolution 2106: 206, 209 United Nations Security Council Resolution 2122: 212, 229n153 United Nations Security Council Resolution 2242: 212

United Nations Security Council Resolution 2422: 212, 213, 214 United Nations Special Rapporteur on Violence against Women, 456 United Nations World Conference on Human Rights, 4 United Nations World Conference on Women, 5, 8, 9, 14 United Self-Defense Groups of Colombia, 437 United States Agency for International Development (USAID), xxxiv, 430n58, 454, 492, 502n53, 512, 524, 539n36 Unit for Land Restitution (Colombia), 436 Unit for the Attention and Reparation of Victims (UARIV) (Colombia), 450, 467, 474n58, 475n63; victimization information from, 461 (table) Unit for the Reparation of Victims (Colombia), 436 Unit for Victims’ Assistance and Reparation (Colombia), 468 (table) Universal Declaration of Human Rights, 5 universalism, 23, 230, 232, 233, 247, 247n1, 251n30, 317, 322, 323, 459–67; culturally sensitive, xx, 4, 11; feminist, xxix, 435, 459–67, 470n6; French, xxix, 250n21 Universidad Nacional de Colombia, 444, 447, 453 University of Findlay, 171 UN Peacekeeping, 201 “UNSC Resolution 1325: South Asian Women’s Perspectives (International Alert),” 520 UN Women. See United Nations Entity for Gender Equality and the Empowerment of Women UP. See Unión Patriótica Upper House of Parliament (India), 391 Urban League, 300, 309 Uribe Vélez, Álvaro, 440, 443, 446, 472n28; Transition and, 436–37, 445

Index U.S. Agency for International Development, 358 USAID. See United States Agency for International Development U.S. Commission on Civil Rights, 125 U.S. Congress, 191; Republican takeover of, 307–10 U.S. Constitution, full faith and credit clause of, 304 U.S. Department of Defense, 170 U.S. Department of Education, xxv, 162, 170, 175n17 U.S. Department of Justice, 92, 143, 285n30 U.S. Department of State, 37, 357, 358, 362 U.S. House of Representatives, 438, 443 U.S. House Ways and Means Committee, 300, 301, 302, 306, 307 “Using Microcredit to Advance Women” (World Bank), 514 USO. See Unión Sindicalista Obrera U.S. Senate Finance Committee, 295 “U.S. Support of Gay Rights in Africa May Have Done More Harm than Good” (New York Times), 362 U.S. Supreme Court, xxv, 159; same-sex marriage and, 353; sexual harassment and, 162; Title IX and, 175n16 Vahini, Shakti, 399, 403n55 Valls, Manuel, 244, 257n100 Valverde, Mariana, xxii, xxiii, xxvii, xxviii, 404n69 Van der Meulen, Emily, 285n33 Vargas Silva, Luis Ernesto, 473n36, 478n112 Vauchez, Stéphanie Hennette, 235 VAW. See violence against women VAWA. See Violence Against Women Act veilings, 240, 328, 331, 339; ban on, 23, 230, 231, 233–38, 241, 247, 250n22, 251n37, 318, 319–21, 325; criminalization of, 326, 329, 337; GF

597

and, 326; Parité and, 317, 319–22, 322–38, 335, 338 Velasquez-Rodriguez v. Honduras, 19 Verma Committee (India), 388–90, 393, 394, 397, 399 Very Young Girls (film), 31, 41 Vichy collaboration, 234 victimization, xxxv, 59, 71, 83, 93, 106, 117, 130, 145, 189, 190, 266, 272, 324, 410, 434, 448, 451–52, 453–54, 460, 461, 462–63, 466, 467, 488, 517, 518 Victims’ Protection Protocol, 385 Vieira, Gilberto, 438 Vienna Conference, 9, 11, 12, 13–17, 20, 26n34 Vienna Declaration and Programme Action (Vienna Declaration), 11, 12, 13, 17–18, 20 Village Reconstruction Committees (VRCs), 526 Village Voice Media, 97 Villeneuve-Loubet ordinance, 245, 258n108 Vine, Sarah, 68 violence, ix, 7, 17–21, 25n12, 95, 96, 98, 109n45, 114, 133, 150, 280, 289, 360, 368n49, 440, 464–65, 479, 480, 483, 489, 492, 493, 494, 497, 502n47. See also domestic violence; gender-based violence; violence against women violence against women (VAW), 12, 13–17, 19, 23, 26n34, 88, 125, 126, 187, 188, 209, 267, 330, 377, 378, 389, 395, 417, 441, 456, 480–81, 481–85, 486–88, 490, 491, 492, 495, 503n68, 504n71; combatting, 194, 397, 482, 486. See also domestic violence; gender-based violence Violence Against Women Act (VAWA) (U.S.), 124, 126, 129, 130, 131, 132, 145, 161, 168, 177n47, 178n63, 186 Violence Against Women Reauthorization Act (U.S.), 170, 177n47, 177n59 Violent Crime Control and Law Enforcement Act (U.S.), 186

598

Index

Vishal Jeet v. Union of India and Ors., 403n55 vox clamantis in deserto, 409, 426–27 WAD. See Women and Development WAF. See Women’s Action Forum Wald, Patricia, 543n70 Walker, Lenore, 127, 130, 140 Walkowitz, Judith, 38 War on Drugs, 149 Washington Consensus, 193, 356, 514, 522, 540n46 Weber, Max, xvi, xvii, xviii Webner, Pnina, 337 Weissman, Deborah, 148 Weitzer, Ron, 36, 50n7, 51n18 welfare, xvii, 464, 464 (table), 466, 507 welfare programs, xxv, xxx, 95, 105, 289, 290, 291, 293, 295, 296, 297, 300, 301, 302, 303, 305, 306, 307, 308, 309, 310, 312n1, 381, 384, 385, 386, 390; child support and, 294, 298, 299, 304 welfare queens, 304 “Welfare Reform or Replacement? (Child Support Enforcement)” (Moynihan), 299 welfare state, 289 “We Must Tackle the Reality of Rape and Dispel the Myths” (Guardian), 67 West, Cornel, 33 West Bank, 479, 480, 485, 498n3, 498n8 West Bank First Program (oPt), 485–86 WEVentureScope of the Economist Intelligence Unit, 521 WHH. See women-headed households WHO. See World Health Organization WID. See Women in Development wife beating, as domestic violence, xxv Wilders, Geert, 336 Wills, María Emma, 447 WILPF. See Women’s International League for Peace and Freedom WLSME. See Women’s Leadership in Small and Medium Enterprises Wolf, Robert Victor, 87–88

Women and Development (WAD), 24n2, 509, 524 women-headed households (WHHs), 526, 527, 5427 Women in Development (WID), 24n2, 508, 509, 524, 537n21 women of color, 119, 125, 143, 144–45, 149, 312. See also African American women; black women; people of color Women of Pakistan: Two Steps Forward, One Step Back (Mumtaz and Shaheed), 411 women, peace, and security (WPS), 200, 202, 219; agenda, 201, 203, 206, 210, 212, 213, 214, 216, 220; implementing, 217, 218; issues, 210, 216, 226; United Nations Security Council Resolutions addressing, 210, 211, 215, 221 Women, Peace, and Security E-News, 201 Women’s Action Forum (WAF), 413–14, 415, 416, 419 Women’s Caucus, 306, 307, 308–9, 310 Women’s Coalition, 201, 277, 279, 281; feminist coalition versus, 273–76 Women’s Committee of One Hundred, 309–10 Women’s Economic Opportunity Index, 521 Women’s Entrepreneurship Development program (ILO), 515 Women’s Forum, 241 Women’s Initiative for Gender Justice, 544n773 Women’s Initiative for Peace, 445 Women’s International League for Peace and Freedom (WILPF), xxiii, 200, 201, 203, 204, 209, 215 Women’s Law Center of Maryland, 141 Women’s Leadership in Small and Medium Enterprises (WLSME), 539n36 Women’s Legal Defense Fund, 293 Women’s Legal, Education and Action Fund (LEAF), 273, 274, 275

Index Women’s Liberation Movement, 324 women’s movement, 264, 282, 407, 408, 410, 411, 413, 416, 418, 428n4, 508 “Women’s Participation in Peace Building” (United Nations Secretary General), 518 women’s rights, 18, 188, 207, 216, 219, 222n10, 239, 331, 366n31, 421, 456, 480, 517, 520 Women Waging Peace, 550n131 Woods, Laurie, 128 Working Group on Welfare Reform, Family Support, and Independence (U.S.), 305 World Bank, xii, xxix, xxxii, xxxiii– xxxiv, 355, 356, 369n55, 369n61, 425, 479, 492, 502n53, 511, 512, 513, 514, 516, 521, 523, 524, 525, 535n4, 535n5, 539n38, 540n46, 540–41n53, 541n54, 547n105 World Bank Group, 356, 538n31 World Development Report: From Plan to Market (World Bank), analysis of, 513

599

World Health Organization (WHO), xxxiv, 184, 193, 492, 493–94, 502n53 WPS. See women, peace, and security Yale University 2013 Annual Security Report, 168 Young, Alan, 271, 272, 273, 277 Young, Iris Marion, 203, 206 Youth Justice and Criminal Evidence Act (U.K.), 56 Yunus, Mohammed, 193 YWCA, 269 zero-tolerance sex policy. See sex policy Zia-ul-Haq, General, 413, 415, 416 Zimmerman, Yvonne, 32 Zimmermann, George, 138 Zimmermann, Marie-Jo, 231, 238, 239, 241, 253n60 Žižek, Slavoj, 433n101 Zorza, Joan, 129