Tuesday, June 8, 2021

The Legal and Social History of Gender Violence and Reevaluation of Criminal Reform Solutions

Deborah Weissman, Gender Violence, the Carceral State, and the Politics of Solidarity, forthcoming, University of California, Davis

Legal epistemologies have tended to ignore issues of gender violence, in large measure because much of the law itself has been implicated in the normative arrangements through which such harms are sustained. State violence against women was practiced as a facet integral to colonial expansion. Gender violence has a long history of legal sanction and political “authorization,” including enslavement, subjugation, and rape of indigenous women. Chattel slavery and Jim Crow laws legalized all forms of abuse of Black women. Forced sterilization and the eugenics movement impacted all women, but especially poor women and almost always women without representation, including Black, brown, and immigrant women. Rape laws favored male propertied interests over women’s rights.

As the principal victims of gender violence, women obtained meager remedy of such harms until feminist mobilizations confronted the problem. Feminist demands to resituate gender violence from the margins of social concern into mainstream public debate found a receptive political environment in the law-and-order climate of the 1970s and 1980s. The criminal legal system thus expanded networks of carceral responses with little regard for safety or ending the problem of gender violence but rather produced pernicious outcomes that resulted in new forms of harms with devastating consequences.

The present re-evaluation of methods of policing and the practice of incarceration offers an occasion to examine prevailing approaches to gender violence. Anti-carceral advocates have urged a shift away from criminal system responses and have campaigned to curb police violence within newly imagined strategies for public safety. The criminal legal system has tended to produce and reproduce patterns of racism and poverty. That it functions in similar fashion to gender violence has received less attention.

These considerations provide the framework of this article: to examine the ways that crimes of gender violence can be accommodated within progressive criminal reform campaigns and included within the broader struggle for social justice, all at a time of a shifting cultural response to crime. It argues that anti-carceral proponents must consider whether the response to gender violence is to be included within other criminal legal reform movements, including recent initiatives to address abusive police practices, bail reform, and COVID-19 compassionate release campaigns. At this present “moment of agitation,” it is both timely and urgent that scholars and advocates contemplate strategies that incorporate gender violence issues within a progressive anti-carceral agenda and to acknowledge the connection between harmful acts within interpersonal relationships and the failure of the State.

The article proposes a “politics of solidarity,” that is, a broad lens through which to address gender-based violence as a social problem conditioned by the failures of a political economy that acts to perpetuate inequality and racism. It suggests that anti-carceral strategies that center gender violence may help to strengthen the broad demands for a more progressive political economy which then mitigates the determinants of transgressive behaviors.


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