Feminism, Violence Against Women, and Law Reform

Decolonial Lessons from Ecuador

Silvana Tapia Tapia

• Publisher: Routledge
• Year: 2022
• Print ISBN: 9780367566470
• eBook ISBN: 9781000577181
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

Offering an important addition to existing critiques of governance feminism and carceral expansion based mainly on experiences from the Global North, this book critically addresses feminist law reform on violence against women, from a decolonial perspective.

Challenging the consensus that penal expansion is mainly associated with the co-option of feminist campaigns to counteract violence against women in the context of neoliberal globalisation, this book shows that long-standing colonial narratives underlie many of today's dominant legal discourses justifying criminalisation, even in countries whose governments have called themselves "leftist" and "post-neoliberal". Mapping the history of law reform on violence against women in Ecuador, the book reveals how the conciliation between feminist campaigns and criminalisation strategies takes place through liberal legality, the language of human rights, and the discourse of constitutional guarantees, across the political spectrum. Whilst human rights make violence against women intelligible in mainstream legal terms, the book shows that the emergence of a "rights-based penality" produces a benign, formally innocuous criminal law, which can be presented as progressive, but in practice reproduces colonial and postcolonial paradigms that limit and reshape feminist demands. The book raises new questions on the complex social and political factors that impact on feminist law reform projects, as it demonstrates how colonial assumptions about gender, race, class, and the family remain embedded in liberal criminal law.

This theoretically and empirically informed analysis makes an innovative contribution to feminist legal theory, post-colonial studies, and criminal law; and will be of interest to activists, scholars and policymakers working at the intersections between gender equality, law, and violence in Latin America and beyond.

Chapter 1
Protecting women in postcolonial Latin America

DOI: 10.4324/9781003098799-2

Introduction

This chapter situates Latin America as a postcolonial site, where colonial ideologies have informed criminal laws on domesticity and the family long before the late 20th century’s feminist interventions in violence against women (VAW). The legal construction of women as subjects of legal protection has historically been mediated by the preservation of the traditional family as a goal of law and policy, with an aim to consolidate national identity. ¹ This chapter shows that, contrary to the common idea that the state was “blind” to violence in domestic spaces, penal legislation has long been used to reprehend “excessive” violence against women and children since the colonial period, and well into the republican years. Acknowledging the racialised nature of nation-making projects, and the role of domestic violence policy in that context, is indispensable to understand the historical production of gendered political identities and the role of coloniality in contemporary legal discourses on VAW.

1 The term “national identity” is understood here as a normalising discourse that the state has often utilised to channel power relations, resulting in a continuous constitution and reconstitution of subjectivities and identities which in turn takes place in different, often fragmented sites where space, time, history, and culture are articulated (Radcliffe & Westwood 1993).

Because a deeply conservative bias has characterised Ecuadorian and Latin American historical writing (Murray, 2010), this chapter is based on content analysis of historical legislation and the work of feminist historians who have researched gender–state relations in the 19th and early 20th centuries. Feminist authors have unveiled that nation-building projects in the region featured elements from eugenics to “improve the national race” by purifying it from “poisons” that were associated with racial inferiority (Clark, 2001; Stepan, 1991). In turn, deviance has almost always been construed alongside gender and race (Campos, 1996; Stepan, 1991; Walker, 2001); that is, there is a close link between race, gender, and nation-making (Dore & Molyneux, 2000; Radcliffe & Westwood, 1996). Through these connections, law and policy on domesticity and family life have incorporated and produced hierarchies based on race, sexuality, and class, which have not been questioned after the advent of human rights frameworks. Colonial family ideals, fostered through the legal protection of women’s modesty to optimise their role as mothers and wives, have long mediated state responses to domestic violence.

Despite their rhetorical endorsement of liberalism and the concepts of freedom and equality, the criollo ² ruling elites of early republican Latin America did not in practice challenge the social hierarchies that had been established in the colonial period. Rather, they were prone to “denigrate the local and value the West” (Radcliffe & Westwood, 1996, p. 13) and, as Stepan puts it: “the educated classes […] wished to be white and feared they were not” (1991, p. 45). Colonially imposed distinctions such as caste, profession, and family name, which had structured society prior to the permeation of liberal ideas in the 18th century, remained central to political life (Guy, 2000).

2 Criollo/a refers to a person of white European descent who was born in the Americas. In Latin America, the ruling classes after the independence wars were formed by Europeans and criollos, while indigenous people, Afro-descendants, and sometimes mixed people, were excluded from governing positions.

Critical accounts of law and race have emphasised the economic and phenomenological implications of racialised subjectification (Ahmed, 2007; Harris, 1993; Quijano, 2000). In addition, some Latin American theorists have pointed out the moral and cultural connotations of white and non-white identities. According to Ecuadorian-Mexican scholar Bolívar Echeverría (2009), the first instances of modern racism can be found in 16th century Latin America, where a rich and open anthropological-theological discussion revolved around questions such as: “do Indians have a soul?” And, “are Indians fully or only partially human?” (Echeverría, 2009; Radcliffe & Westwood, 1996). The moral connotations of racial division are reflected in Echeverría’s definition of racism: it consists of addressing other people through the filter of a previous determination that qualifies their appearance as ethically meaningful. Echeverría (2007) argues that “identitarian racism” produces whiteness as an ethical and civilisational order. For instance, a concept of ancient Iberian origin, “honour”, has helped rationalise the race and class-based social hierarchy of late-colonial and postcolonial Latin America (Murray, 2010). Modern citizenship requires the whiteness, or “whiteyness” (blanquitud) of its members. Nevertheless, whiteyness can be acquired to an extent through education and the modification of behaviour; that is, an ethnically non-white person can become white-like (blanquearse) and acquire whiteyness (Echeverría, 2007). Blanqueamiento (becoming white-like) is a process that is tied to economic and political relations that also involves culture, identity, and values (Radcliffe & Westwood, 1996). Therefore, the narrative of mestizaje (racial hybridisation) in Latin America is, at its heart, an aspiration to whiteness.

With this backdrop, we can understand how the idea of racial miscegenation, mestizaje, has been incorporated into law and policy in the region. Breny Mendoza (2001) has defined mestizaje as a technology of power that interweaves race, gender, sex, and class, and shapes colonial and postcolonial societies. Mestizaje is, in its origin, the product of violence: “the Spaniard rapes the Indian woman and then abandons her and the [mestizo] child born of this union” (Mendoza, 2001, p. 271). Hence, mestizaje produces a masculine-mestizo symbolic order, whereby racism, sexuality, and colonial subjugation are intertwined. Mestizaje is one of the axes around which power relations based on stratification by race, gender, class, and sexuality have been articulated, from the colonial era to the present.

After the independence wars, the criollo and white-mestizo elites faced the challenge of bringing together very heterogeneous peoples and communities to build the new nations. The idea of a modern republic included a rhetoric by which mestizaje (hybridity) was the norm, and exclusive ethnicities were archaic (Radcliffe & Westwood, 1996). As Mendoza puts it: “almost all traces of [an individual’s] biological and social existence are suppressed, even in the demographic censuses, in order to erect a [national identity] based on a supposedly full and total mestizaje” (2001, p. 259). In many ways, this narrative erased racism as a governance problem, but the connotations of mestizaje were in practice evocative of a desire for social whiteness, and produced various forms of internalised racism.

To me, it is important to remark that the mestiza ³ (despite the rhetoric that attempts to use the term as egalitarian or multicultural), is still, primarily, a non-white subject. ⁴ As a consequence, because most inhabitants of the postcolony are non-white, they are dependent on diverse forms of blanqueamiento, with all its class and gender implications, to have full access to citizenship. Darker skin means more indigenous and/or African blood, and thus a longer path to walk to become a citizen. Put in a different way, becoming a citizen is largely to become white-like and being able to use the law for one’s benefit, it is necessary to be a citizen.

3 In Latin America, the words mestiza and mestizo traditionally refer to people of mixed ancestry (white and indigenous). Gloria Anzaldúa has vindicated the word mestiza. To her, “new mestizas” inhabit multiple worlds because of their gender, sexuality, colour, class, body, and other life experiences. “Mestiza consciousness” refers to a nonbinary way of thinking and acting that includes a transformational tolerance for contradiction and ambivalence (Keating, 2009). In this chapter, I use mestizaje in its more traditional sense, although I do include Afro-descendants under the term, which has not always been the case in the historical use of the word. 4 Some regions in Latin America use the term trigueño. This is more evocative of skin colour as such, and usually includes mixed people of African descent alongside white and indigenous ancestry. The term is “part of many Latin Americans’ popular imaginary about themselves given the difficulty of knowing where they actually come from, and a label officially endorsed by many states to refer to the bulk of their citizens” (Eslava, 2020, para. 7). For a fascinating ethnographic account of the term in Latin America see Luis Eslava’s (forthcoming) chapter on “trigueño international law”, in Out of Place: Power, Person and Difference in Socio-Legal Research.

The governmental practices of producing social and cultural whiteness in the early republican period partly relied on the views of neo-Lamarckian eugenics, including ideas regarding the inheritance of acquired characters. In her landmark work, The hour of eugenics, Nancy Stepan (1991) argues that Latin America is significant as a case study because it historically challenged the more common “mainline” (Mendelian) eugenics. Lamarckism developed the idea that changes induced in a living organism from the outside can be handed on to future generations. Following Lamarckian theories, Latin American eugenicists understood many diseases, such as tuberculosis or syphilis, as well as behavioural issues, such as alcoholism, as hereditary (Stern, 2016). They referred to these threats as “racial poisons”, a term used in the early 20th century to describe the “contamination” of the race. At the same time, backwardness was associated with indigenous and Afro-descendant identities. Behind the idea of the raza mestiza as one “national race”, we find practices that regarded mestizaje as a pollutant that was conducive to degeneration and degradation. Legislation and public policy were thus expected to provoke a modification of behaviour that could contribute to whitening and “civilising” the population.

In that context, the archetypical family, which aspired to aristocratic, white, and heterosexual models, served as the starting point to form a national identity and an optimal citizenry. The ruling elites saw the family as the nucleus that could give the new independent territories the required stability to build a solid nation-state. In sum, as Donna Guy (1991) puts it: the notion of citizenship in Latin America emerges from the conflation of family and nation. Along these lines, I next outline the legal discourses that produced femininity and domesticity in the early republican period.

Race, gender, and the postcolonial legal field

Given their common colonial history, Latin American countries have considerable legal homogeneity. Precolonial institutions are known to us mainly through the lens of the colonisers’ chronicles, and via colonialist social sciences; however, critical historians and anthropologists have shown that complex administrative and legal institutions existed in precolonial empires (Vidal López, 2003). During the colonial period, interlegality (Santos, 1995), that is, a sustained interaction between pre-Hispanic and co...

Table of contents

• Cover
• Endorsements
• Half-Title
• Series
• Title
• Copyright
• Dedication
• Contents
• List of figures
• List of tables
• Foreword
• Acknowledgements
• Abbreviations
• Introduction: Toward a decolonial feminist critique of penality
• 1 Protecting women in postcolonial Latin America
• 2 Law was foe: Women’s movements before the 1990s
• 3 Violence against women, human rights, and the turn to criminal law
• 4 From neoliberal to post-neoliberal: The constitutional journey of rights-based penality
• 5 A new Penal Code: Criminalising violence against women using rights-based penality
• 6 Report from the field: Women’s experiences of using specialised penal courts
• Index