Intimate Partner Violence, Risk and Security: Securing Women’s Lives in a Global World 1138700355, 9781138700352

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Intimate Partner Violence, Risk and Security

This edited collection addresses intimate partner violence, risk and security as global issues. Although intimate partner violence, risk and security are intimately connected they are rarely considered in tandem in the context of global security. Yet, intimate partner violence causes widespread physical, sexual and/or psychological harm. It is the most common type of violence against women internationally and is estimated to affect 30 per cent of women worldwide. Intimate partner violence has received significant attention in recent years, animating political debate, policy and law reform as well as scholarly attention. In bringing together a range of international experts, this edited collection challenges status quo understandings of risk and questions how we can reposition the risk of IPV, and particularly the risk of IPH, as a critical site of global and national security. It brings together contributions from a range of disciplines and international jurisdictions, including from Australia and New Zealand, United Kingdom, Europe, United States, North America, Brazil and South Africa. The contributions here urge us to think about perpetrators in more nuanced and sophisticated ways with chapters pointing to the structural and social factors that facilitate and sustain violence against women and IPV. Contributors point out that states not only exacerbate the structural conditions producing the risks of violence, but directly coerce and control women as both citizens and non-­citizens. States too should be understood as collaborators and facilitators of intimate partner violence. Effective action against intimate partner violence requires sustained responses at the global, state and local levels to end gender inequality. Critical to this end are environmental issues, poverty and the divisions, often along ‘race’ and ethnic lines, underpinning other dimensions of social and economic inequality. Kate Fitz-­Gibbon is a Senior Lecturer in Criminology in the School of Social Sciences at Monash University and an Honorary Research Fellow in the School of Law and Social Justice at the University of Liverpool. Sandra Walklate is Eleanor Rathbone Chair of Sociology at the University of Liverpool, conjoint Chair of Criminology, Monash University and Editor in Chief of the British Journal of Criminology. Jude McCulloch is Professor of Criminology in the School of Political and Social Inquiry, Monash University. JaneMaree Maher is Professor in the Centre for Women’s Studies and Gender Research, Sociology in the School of Social Sciences at Monash University. All editors are members of the Monash Gender and Family Violence Research Program.

Routledge Studies in Crime, Security and Justice Edited by Adam Edwards Cardiff University Gordon Hughes Cardiff University Reece Walters Queensland University of Technology

Contemporary social scientific scholarship is being transformed by the challenges associated with the changing nature of, and responses to, questions of crime, security and justice across the globe. Traditional disciplinary boundaries in the social sciences are being disturbed and at times broken down by the emerging scholarly analysis of both the increasing merging of issues of ‘crime’ and ‘security’ and the unsettling of traditional notions of justice, rights and due process in an international political and cultural climate seemingly saturated by, and obsessed with, fear, insecurity and risk. This series showcases contemporary research studies, edited collections and works of original intellectual synthesis that contribute to this new body of scholarship both within the field of study of criminology and beyond to its connections with debates in the social sciences more broadly. Policing European Metropolises The Politics of Security in City-­R egions Edited by Elke Devroe, Adam Edwards and Paul Ponsaers Police Work and Identity A South African Ethnography Andrew Faull Youth, Community and the Struggle for Social Justice Tim Goddard and Randy Myers Protests in the Information Age Social Movements, Digital Practices and Surveillance Edited by Lucas Melgaço and Jeffrey Monaghan Intimate Partner Violence, Risk and Security Securing Women’s Lives in a Global World Edited by Kate Fitz-­G ibbon, Sandra Walklate, Jude McCulloch and JaneMaree Maher For more information about this series, please visit: www.routledge.com/ Routledge-­S tudies-in-­C rime-Security-­a nd-Justice/book-­s eries/RSCSJ

Intimate Partner Violence, Risk and Security

Securing Women’s Lives in a Global World

Edited by Kate Fitz-­G ibbon, Sandra Walklate, Jude McCulloch and JaneMaree Maher

First published 2018 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2018 selection and editorial matter, Kate Fitz-­G ibbon, Sandra Walklate, Jude McCulloch and JaneMaree Maher; individual chapters, the contributors The right of Kate Fitz-­G ibbon, Sandra Walklate, Jude McCulloch and JaneMaree Maher to be identified as the authors of the editorial matter, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-­in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-­in-Publication Data Names: Fitz-Gibbon, Kate (Lecturer in criminology) editor. | Walklate, Sandra, editor. | McCulloch, Jude, editor. Title: Intimate partner violence, risk and security: securing women’s lives in a global world / edited by Kate Fitz-Gibbon, Sandra Walklate, Jude McCulloch and JaneMaree Maher. Description: New York: Routledge, 2018. | Series: Routledge studies in crime, security and justice | Includes bibliographical references and index. Identifiers: LCCN 2018007750 | ISBN 9781138700352 (hardback) | ISBN 9781315204765 (ebook) Subjects: LCSH: Intimate partner violence. | Family violence. | Women–Violence against. | Abused women–Economic conditions. Classification: LCC HV6626.I5847 2018 | DDC 362.82/92–dc23 LC record available at https://lccn.loc.gov/2018007750 ISBN: 978-1-138-70035-2 (hbk) ISBN: 978-1-315-20476-5 (ebk) Typeset in Goudy by Wearset Ltd, Boldon, Tyne and Wear

To Matilda and William

Contents



List of illustrations Notes on contributors Acknowledgements List of acronyms and abbreviations



Introduction: intimate partner violence, risk and security – securing women’s lives in a global world

x xi xvii xviii

1

K ate   F itz - ­G ibb o n , S an d ra   W alklate , J u d e   M c C ull o ch an d J ane M aree   M aher

Part I

Challenges in the contemporary global policy framework

17

  1 Securitising sexual violence: transitions from war to peace

19

A nette   B ringe d al   H o uge an d I nger   S kjelsb æ k

  2 Climate change, the production of gendered insecurity and slow intimate partner violence

34

N ancy A . W o n d ers

  3 Spacelessness, spatiality and intimate partner violence: technology-­facilitated abuse, stalking and justice

52

B ri d get H arris

  4 Challenging risk: the production of knowledge on gendered violence in South Africa F l o retta B o o nzaier

71

viii   Contents

  5 Surveying the womanscape: objectification, self-­objectification and intimate partner violence

88

J an J o r d an

Part II

National security, difference and precarity

107

  6 Mapping gender violence narratives in the Northern Triangle of Central America

109

L e d a L o zier

  7 Temporary migration and family violence: the borders of coercive control

126

M arie S egrave

  8 Misunderstanding risk, migration and ethnicity in intimate partner violence

142

G ema V ar o na 

  9 ¿QUE DIRÁN? Making sense of the impact of Latinas’ experiences of intimate partner violence in New York City

161

Y o lan d a  O R T i Z - R OD R I´ G U E Z an d J ayne  M o o ney

Part III

Everyday security and criminal justice questions

179

10 The criminalisation of femicide

181

T hiag o P ier o b o m d e  Á vila

11 Considering victim safety when sentencing intimate partner offenders

199

J ulia T o lmie

12 Domestic violence protection orders and their role in ensuring personal security H eather D o uglas

216

Contents   ix

13 Negotiating women’s safety: the mandatory charging debate

233

H o lly   J o hns o n an d Deb o rah   E .   C o nners

14 Criminalising private torture as feminist strategy: thinking through the implications

251

E lizabeth A . S heehy



Conclusion: securing women’s lives – making them count and accounting for men’s violence

269

K ate   F itz - ­G ibb o n , S an d ra   W alklate , J u d e   M c C ull o ch an d J ane M aree   M aher



Index

275

Illustrations

Figures   6.1

Regina José Galindo, The pain that lies within a handkerchief (El dolor en un peñuelo), 1999, stampa lambda su forex, 150 × 100 cm   6.2a Regina José Galindo, We lose nothing in being born (No Perdemos nada con nacer), 2000, Guatemala, stampa lambda su forex, 70 × 100 cm   6.2b Regina José Galindo, We lose nothing in being born (No Perdemos nada con nacer), 2000, Guatemala, stampa lambda su forex, 180 × 125 cm   7.1 The basic difference between temporary migrants on a partner and non-­partner visa 13.1 Top 5 benefits of mandatory charging as experienced by women whose partners were charged and police 13.2 Top 5 negative consequences of mandatory charging as experienced by women whose partners were charged and police

119 120 121 129 242 244

Tables   8.1 IPV and inequality 10.1 International ranking of female homicides 12.1 Perceived usefulness of DVO (correlated to employment, prior convictions and breaches of the DVO)

143 182 223

Contributors

Editors Kate Fitz-­Gibbon is a Senior Lecturer in Criminology in the School of Social Sciences at Monash University and an Honorary Research Fellow in the School of Law and Social Justice at the University of Liverpool. She is recognised as a leading researcher in family violence, legal responses to lethal violence and the effects of homicide law and sentencing reform in Australian and international jurisdictions with her single authored book, Homicide Law Reform, Gender and the Provocation Defence: A Comparative Perspective (Palgrave Macmillan), being cited in a judgment of the High Court of Australia (Lindsay v. The Queen [2015] HCA 16). Her publications include an edited collection with Sandra Walklate on Homicide, Gender and Responsibility: An International Perspective published by Routledge in 2016. She is a member of the Monash Family Violence Focus Research Program and is in receipt of funding from the Australian Research Council and Australia’s National Research Organisation for Women’s Safety, including a 2017–2020 Discovery Grant on Securing Women’s Safety: Preventing Intimate Partner Homicides. JaneMaree Maher is Professor in the Centre for Women’s Studies and Gender Research, Sociology in the School of Social Sciences. JaneMaree’s research is focused in two key areas of gendered social science: women’s work and family, and gendered violences. Her family work critically examines the interactions of families and societies, with an emphasis on how neoliberal discourses of health and consumption impact on family relationships. JaneMaree is involved in gendered violence projects focused on how gender impacts on the operation of criminal justice and security. Her key interests are in family violence and gendered patterns. JaneMaree is joint Program Lead in the Monash Gender & Family Violence team, focusing on new frameworks for prevention. Recent publications include Policing Hate Crime: Understanding Communities and Prejudice (Routledge, London, 2017) (with Gail Mason, Jude McCulloch et al.), Consuming Families: Buying, Making,

xii   Contributors

Producing Family Life in the 21st Century (Routledge, London, 2013) (with Jo Lindsay), Vanity: 21st Century Selves (Palgrave MacMillan, London, 2103) (with Claire Tanner and Suzanne Fraser) and Sex Work: Labour, Mobility and Sexual Services (Routledge, London, 2013) (with Sharon Pickering and Alison Gerard). Jude McCulloch’s research investigates the growing integration of war and crime, police and the military and security and crime control and the implications of this for justice. Her book Blue Army (2001) was the first of many contributions that looked at the rise and normalisation of paramilitary policing. Her subsequent research and scholarship continued to focus on this topic, particularly in the context of counter terrorism, post 9/11. Her most recent research considers a temporal shift from post crime to pre-­crime. Her book Pre-­Crime: Preemption, Precaution and the Future (with Dean Wilson) is the first in-­depth investigation of pre-­crime. Recent research projects focus on risk, prevention and family violence. Her 2017 Australian Research Council Discovery Grant (with Kate Fitz-­Gibbon, JaneMaree Maher and Sandra Walklate) is titled Securing Women’s Safety: Preventing Intimate Partner Homicides. Sandra Walklate is currently Eleanor Rathbone Chair of Sociology at the University of Liverpool, UK, conjoint Chair of Criminology, Monash University, Melbourne, Australia. She is Editor-­in-Chief of the British Journal of Criminology and in July 2014 was awarded the British Society of Crim­ inology’s outstanding achievement award. Sandra is a member of the British Society of Criminology, the European Society of Criminology, the Amer­ ican Society of Criminology and the Australian and New Zealand Society of Criminology. Sandra has held visiting professorships at the University of Stockholm, Minho University, Reims University and the University of Sydney. She also holds an adjunct professorial role at QUT in Brisbane. Sandra has been researching criminal victimisation since the early 1980s with a particular focus on gendered violence(s) and the fear of crime. Over the last 15 years Sandra’s interest has also become focused on fear and victimisation in relation to the impact of terrorism and related policy particularly in relation to processes of radicalisation. With colleagues at Monash University Sandra is the international partner for an ARC funded grant looking at intimate partner homicide as part of their Family Violence Focus Programme. 

Contributors Floretta Boonzaier is Associate Professor in Psychology at the University of Cape Town. She works in feminist, critical, social and decolonial psychologies, with special interests in intersectional subjectivities, participatory

Contributors   xiii

methodologies and gender-­based violence – all areas in which she has published. She is past Mandela Fellow and Sheila Biddle Ford Foundation Fellow at the Hutchins Center for African and African American Research at Harvard University. She serves on the Advisory Board of the Centre for Narrative Research at the University of East London, and on the Board of the African Gender Institute at the University of Cape Town. Anette Bringedal Houge, PhD, is a Research Fellow at the Department of Criminology and Sociology of Law, Faculty of Law, University of Oslo. Her research focuses on how law is used to narrate, explain and manage collective violence, with a particular focus on conflict-­related sexual violence, and what this juridification of a particular social phenomenon entails for societal understanding. Deborah E. Conners received her PhD in Sociology at Carleton University, Ottawa, in 2016. Her dissertation examined the nuancing of feminist understandings of intimate partner violence through interviews with feminist violence against women workers and activists, partner abuse response workers and private practitioners. She is currently teaching in the Department of Sociology and Anthropology at Carleton University. The research reported on in this chapter came out of her postdoctoral research with Associate Professor Holly Johnson (PI) and the Ottawa Coalition to End Violence Against Women. Heather Douglas is a Professor of Law at the T. C. Beirne School of Law at the University of Queensland, Australia, and an Australian Research Council Future Fellow. Heather researches in the areas of criminal justice and domestic violence and has published widely on these issues. In 2016–2017, she was the lead researcher and project coordinator on the development of the National Domestic and Family Violence Bench Book. Her current work explores the way women engage with the legal system as part of their response to domestic violence. Bridget Harris is a lecturer in the School of Justice in the Faculty of Law and member of the Crime and Justice Research Centre at Queensland University of Technology, Australia. Her work explores domestic violence in regional, rural and remote locations, technology-­facilitated domestic violence and technology-­facilitated advocacy and administration of justice in the context of domestic violence. She was an editor of Locating Crime in Context and Place: Perspectives on Regional, Rural and Remote Australia, has published her work in criminology and law journals, and contributed to the recent Victorian Royal Commission into Family Violence. Holly Johnson is Associate Professor in the Department of Criminology, University of Ottawa in Canada. Her research examines women’s experiences of male violence as well as criminal justice and social responses to this

xiv   Contributors

violence using a variety of methodologies designed to capture women’s lived experiences. The study presented in this chapter is the result of a collaboration with postdoctoral fellow Dr Deborah Conners and violence against women coordinating committees across Canada’s largest province. Jan Jordan is an Associate Professor at the Institute of Criminology, Victoria University of Wellington, New Zealand. She has over 25 years’ experience teaching and researching in the area of women, crime and victimisation. Her major research interest is in sexual violence and she is a regular presenter on police adult sexual assault investigation training courses. She is currently working on a major research grant awarded by the Marsden Fund of the Royal Society of New Zealand examining the broader social context of silencing and objectification within which women’s allegations of sexual violence are responded to. Leda Lozier was born and raised in Honduras. She graduated with a master’s degree in Spanish literature in 2010 from the University of Iowa, where she focused her studies on gender issues within Medieval, Golden Age and Colonial literature. Since 2013, Leda has been a doctoral student at the University of Georgia, where she has shifted her focus to modern-­day Central American literature. She is currently working on her dissertation, which explores narratives from 1980 to 2016 that centre on gender violence in the Northern Triangle of Central America. Gema Varona is a Lecturer in Criminology and Victimology at the University of the Basque Country (Spain) and Senior Researcher at the Basque Institute of Criminology. She has authored books on migration and human rights, restorative justice, juries and truth, women local safety audits, victims of terrorism and victims of sexual abuse. Jayne Mooney is Associate Professor of Sociology at John Jay College of Criminal Justice and a member of the Doctoral Faculties in Sociology, Women Studies and Criminal Justice, the Graduate Center, at the City University of New York. Her scholarship focus is in the areas of gender and crime, the sociology of violence, social deviance, and the history of crime and punishment. She is currently involved in a study with Yolanda Ortiz-Rodríguez on the impact of immigration policy on undocumented Latina women. Yolanda Ortiz-Rodríguez is an Adjunct Professor of Sociology at John Jay College of Criminal Justice, City University of New York. She has experience in the provision of domestic violence services as well as in juvenile justice. Her scholarship agenda is focused on the impact of violence on women and gender and crime, and she is currently exploring the area of coercive control and its use by families and communities in perpetuating violence against women. Marie Segrave is an Associate Professor in Criminology at Monash University. Her research has broadly focused on the intersections of migration status,

Contributors   xv

exploitation, gender and regulation. She has worked on a number of key projects with Monash Gender and Family Violence focused on family violence, and has recently undertaken a large study on temporary migration and family violence in Australia. Her recent publications include (with Milivojevic and Pickering) Sex Trafficking and Modern Slavery: The Absence of Evidence (Routledge, 2018), and the co-­edited volume (with Vitis) Gender, Technology and Violence (Routledge, 2017). Elizabeth A. Sheehy, LL.B., LL.M., LL.D. (Honoris causa), F.R.S.C., is a Professor at the University of Ottawa Faculty of Law, where she has taught and researched in the area of criminal law and legal responses to men’s violence against women for more than 30 years. Her research record includes her most recent books Sexual Assault in Canada: Law, Legal Practice and Women’s Activism (University of Ottawa Press, 2012) (available on Open Access) and Defending Battered Women on Trial: Lessons from the Transcripts (UBC Press, 2014). The latter book won the David Walter Mundell Medal for fine legal writing awarded by the Attorney-­General of Ontario, and was short­listed for the 2015 Canada Prize. In 2017, Elizabeth was awarded a Persons Award from the Governor-­General of Canada for her sustained contribution to women’s equality. Inger Skjelsbæk is a Research Professor in political psychology at the Peace Research Institute Oslo, and an Associate Professor at the Psychology Department and the Center for Research on Extremism at the University of Oslo. Her research focuses on gender, political violence, norms and transitional justice. Julia Tolmie teaches Criminal Law and Women and the Law at the University of Auckland. She served as Chair of the New Zealand Family Violence Death Review Committee from December 2011 to 2016, and as a member of both the New Zealand Government’s Expert Advisory Group on Family Violence in 2013 and the New Zealand Law Commission’s Expert Advisory Panel in 2015 on references relating to intimate partner violence. In 2016, she was the inaugural Shirley Greenberg International Visiting Scholar at the University of Ottawa. Prior to her appointment at Auckland, she lectured in the Faculty of Law at the University of Sydney. Thiago Pierobom de Avila is a Fellow of the Gender and Family Violence – New Frameworks in Prevention Research Program of the School of Social Sciences, Faculty of Arts, Monash University. He completed his PhD and was an associate researcher at the Institute of Criminal Law and Criminal Sciences, Law Faculty, University of Lisbon, Portugal. He was previously a Senior Prosecutor at the Office of the Prosecutor-­General in Brasilia, Brazil, and a Professor in the Foundation for postgraduate studies FESMPDFT and lecturer in Brasilia.

xvi   Contributors

Nancy A. Wonders is Professor of Criminology and Criminal Justice at Northern Arizona University. She has published extensively on globalisation and the increasingly transnational character of crime and justice; the relationship between social inequality, difference and (in)justice; the criminology of borders and mobility; and the development of effective strategies to create sustainable and just communities. Professor Wonders is a past Chair of the American Society of Criminology’s Division on Women and Crime and a recipient of the Society for the Study of Social Problems Joseph B. Gittler Award for significant scholarly achievements on the ethical resolution of social problems.

Acknowledgements

This collection was conceived as part of an ongoing broader programme of research on gender and family violence. This research programme has been generously supported by the Arts Faculty at Monash University and by colleagues in the School of Social Sciences. We extend our appreciation to members of the wider Monash Gender and Family Violence programme of research, including Associate Professor Marie Segrave, Dr James Roffee, Dr Kathryn Benier, Dr Claire Spivakovski and Kate Burns. We would like to thank all our research assistants, including Dr Karla Elliott, Dr Brandy Cochrane, Imogen Richards and Rachael Burgin. Special thanks to our research manager, Dr Jasmine McGowan, who daily exceeds all reasonable expectations. It is hard to imagine managing this and other projects without Jasmine’s consistent good sense, attention to detail and hard work. Thank you to Julia Farrell whose expert copyediting under time pressure improved the quality of the collection substantially. Thank you also to the team at Routledge, especially Hannah Catterall whose professionalism was unfailing. We extend our special thanks to all the contributors who generously and creatively engaged with the collection’s themes and delivered high quality chapters, on time and often in challenging circumstances. The editors and contributors were fortunate to have the opportunity to present papers and workshop ideas at the Monash Prato Centre in Italy over two days in September 2017. The workshop provided a rich and rewarding venue for the exchange of ideas and reflections on connecting and diverging themes and frameworks. Thanks to all contributors who attended in such a positive spirit of collaboration. This has been a pleasure and privilege. Thank you also to the staff at the Monash Prato Centre, especially Sarah Gore, who went above and beyond expectations to create a pleasant and even inspiring context for the workshop, and the Faculty of Arts, which supported the workshop. We extend heartfelt thanks to the ongoing support of our families. This project is part of the Australian Research Council Discovery Project Grant: 170100706 ‘Securing Women’s Lives: Preventing Intimate Partner Homicide’.

Acronyms and abbreviations

ACS ATM ATSI CALD CAT CEDAW

Administration for Children Services anal-­to-mouth Aboriginal and Torres Strait Islander culturally and linguistically diverse Committee Against Torture Committee on the Elimination of Discrimination Against  Women CRSV conflict-­related sexual violence DFV domestic and family violence DPA Dayton Peace Agreement DVO Domestic and family violence protection order EU European Union FVDRC New Zealand Family Violence Death Review Committee IACHR Inter-­American Commission on Human Rights ICC International Criminal Court INE National Statistics Institute IPCC Intergovernmental Panel on Climate Change IPV intimate partner violence JUST Standing Committee on Human Rights and Justice MRA men’s rights activist NGO non-­government organisation OHR Office of the High Representative OSCE Organisation for Security and Cooperation in Europe PRE Police Risk Evaluation PREE Police Risk Evolution Evaluation PTSD Post-­traumatic stress disorder SIPV slow intimate partner violence UK United Kingdom UN United Nations UNSCR United Nations Security Council Resolution US United States

Acronyms and abbreviations   xix

VAW VIS VRCFV WHO WMA

violence against women Victim Impact Statements Victorian Royal Commission into Family Violence World Health Organization World Medical Association

Introduction Intimate partner violence, risk and security – securing women’s lives in a global world Kate Fitz-­G ibbon, Sandra Walklate, Jude McCulloch and JaneMaree Maher This volume addresses intimate partner violence, risk and security as global issues. Although intimate partner violence (IPV), risk and security are intimately connected, they are rarely considered in tandem in the context of global security. Yet, IPV (abusive behaviour by a person within an intimate relationship including current or past marriages, domestic partnerships, or de facto relationships) causes widespread physical, sexual, financial and/or psychological harm. It is the most common type of violence against women internationally and the most common type of family violence (see, for example, World Health Organization 2010). It is estimated to affect 30 per cent of women worldwide (World Health Organization 2013). IPV has received significant attention in recent years, animating political debate, policy and law reform as well as scholarly attention (Sparks and Gruelle 2016; Hattery 2009; Finkel and Christopher 2013). Women and children from some communities can be affected disproportionately, particularly those with a disability and those from Indigenous communities in settler countries (AIHW 2006; Brownridge 2006; Chan and Payne 2013). Importantly, research has consistently shown that IPV is a crime not exclusive to any one country, culture or socio-­economic group. It is, however, a gendered form of violence, and is consistently linked to gender inequality. One study across 44 countries found that factors relating to gender inequality predicted the prevalence of IPV (Heise and Kotsadam 2015). Similarly, a United Nations (United Nations Women 2011) review found significantly higher rates of violence against women in countries where women’s economic, social and political rights are inadequately protected. Even in countries that enjoy relatively high levels of gender equality such as Sweden, gendered violence, IPV and homicides persist (Fundamental Rights Agency 2014). There is growing acknowledgement and understanding of the extent and costs of IPV, particularly its contribution to the injury and death of women and children (see, for example, World Health Organization 2013). Despite this the risk of such violence continues to be tolerated and national security priorities consistently fail to recognise IPV as a more likely and more preventable threat to people’s, particularly women’s, lives, than many other threats such as terrorism. While there are concerted efforts in a growing number of national

2   Kate Fitz-Gibbon et al.

jurisdictions to end violence against women generally and IPV in particular, this trend is not uniform. In some contexts, such as the recent Russian decision to decriminalise some forms of domestic violence, there is backward movement. Generally, strategies that reduce incidents and respond effectively to IPV remain elusive. Legal reforms in many jurisdictions over several decades have failed to fundamentally address the difficulties women face when seeking assistance to escape or prevent violence in intimate relationships. England and Wales, for example, have recently made coercive control a criminal offence, but feminist critics, these authors amongst them, question the ability of such laws to effectively address IPV and raise concerns about potential unintended and adverse consequences for women experiencing IPV (Walklate et al. 2017b). In many jurisdictions, while the reported incidence of IPV is increasing, there are still gaps in research and data collection, masking the full extent of this form of violence (Devries et al. 2013). Increased reporting may indicate that women are less likely to tolerate such violence and/or have more confidence in police. However, the persistence of IPV as a major issue impacting on women and their children is also evident in the available data. Additionally, the number of intimate partner homicides (IPH) has remained consistent in Western jurisdictions and has in some cases increased (Brennan 2016a in the United Kingdom; Cussen and Bryant 2015 in Australia; Smith et al. 2014 in the United States). This failure of legal and policy reform is often linked to the persistence of gendered social inequality as a primary driver of violence against women, including IPV.

Changing the story of intimate partner violence It is important to acknowledge, however, that feminist activists and scholars have ‘changed the story’1 about IPV. Only a few short decades ago rape in marriage was considered a legal impossibility, and IPV was trivialised as ‘just a domestic’, with police typically instructed to avoid getting involved in what were considered people’s private or civil issues. As a result, men engaging in such violence operated with impunity (McCulloch 1985). The establishment of women’s shelters in Western countries by feminist activists to house those fleeing violent homes and relationships in the 1970s was a major milestone in exposing the nature and extent of IPV. The establishment of free, often community-­based legal services, and the increased presence of women in senior policy positions, politics, policing and the courts during the same decades reinforced attention to IPV as a legal, social and political issue. Today IPV is increasingly recognised as a human rights issue. While IPV is driven by gender inequality, it simultaneously entrenches such inequality and substantially infringes on a person’s ability to access and enjoy rights. The 1992 United Nations Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) recognised that violence against women ‘seriously inhibits women’s ability to enjoy rights and freedoms on the basis of equality

Introduction   3

with men’ (CEDAW 1992: n.p.). IPV undermines women’s ability to engage productively in the economy, to maintain secure housing and to parent effectively. IPV infringes on a woman’s right to housing and is a leading cause of homelessness for women in many countries (Chamberlain and Johnson 2013). It has widespread and significant negative effects on women’s physical and mental health (Franzway et al. 2015; WHO 2013). IPV is a recurrent factor in child protection notifications (Humphreys 2007). It is increasingly understood that exposure to IPV causes significant harm to children, which can begin during pregnancy and progress through all stages of development (Victorian Royal Commission into Family Violence 2016: Volume 2, Chapter 10). IPV is also a major criminal justice issue (Colombini et al. 2008; Grotpeter et al. 2008). Police, for example, spend a significant proportion of their time responding to IPV (Segrave et al. 2016). In England and Wales, it has been estimated that police receive a domestic violence related call every minute (Stanko 2001: 219). These high numbers persist despite widespread acknowledgement of the underreporting of IPV by women to the police (Douglas 2008; Hoyle and Sanders 2000; MacQueen and Norris 2016).

Counting the costs of intimate partner violence There is a growing body of research on the prevalence, impact and cost of violence against women and IPV in particular (Watts and Zimmerman 2002). This research reflects the significant impact of such violence on women and their children, and the substantial costs to individuals and across the entire community. The human, social and economic costs are staggering. It is estimated that violence against women costs the world US$6.3 trillion each year (Hoeffler and Fearson 2015). National studies give more nuanced but equally alarming estimates of the financial costs of IPV. It is estimated that violence against women costs Australia $21.7 billion a year, of which $12.6 billion is related to violence by an intimate partner (PriceWaterhouseCoopers 2015). Yet, prior to the feminist interventions of the 1970s intimate partner homicide (IPH), as the most extreme manifestation of IPV, tended not to be counted. Not being counted can be read as a sign of not being seen to count (Porter 1996). Well into the 1980s, IPHs were typically not categorised or recorded separately as an outcome of IPV. The result was that the nature, frequency, causes, costs and impacts of these killings were not widely acknowledged or memorialised in systematic ways (see, for example, Women’s Coalition against Family Violence 1994). Governments worldwide and the United Nations are presently engaging in reviews of responses to IPV and gender-­based killings – Brazil’s recent decision to create an offence of ‘feminicide’ and the conviction of offenders in the Sepur Zarco case of 1982–1988 in Guatemala offer positive examples of progress, but there is still work to be done. The benefits of systematic data collection have been recognised by the United Nations, which states that data can be used to:

4   Kate Fitz-Gibbon et al.

enable informed decisions on where and how to target funding and other support.… Tracking data over time and monitoring trends can also support those designing and implementing programmes to more effectively evaluate the impact of their programmes. Among other uses, that data can then inform agencies’ requests for additional funding. Proper use of VAWG [violence against women and girls] data can also empower survivors. By effectively presenting the issue as a national, sub-­regional or even global preoccupation, women and girls will understand that they are not alone. (United Nations Population Fund 2013: 1) Weber and Pickering (2011: 36) have extended this argument to address the value of collecting quantitative data on number of deaths (border crossings in their example) to highlight the prevalence, the costs and the need for change. We argue that sustained and systematic attention to intimate partner homicides globally is a critical platform for highlighting the need to continue to seek innovative change in policies and approaches, to ‘craft and recraft’ government policies, and to secure women’s safety. Despite the recognised benefits of collecting data in this space, there is still no global index of IPHs and no widespread acknowledgement of the costs to legal, health care and economic systems more generally. However, country specific statistics are becoming more readily available. In England and Wales, for example, national statistics reveal that two women are killed each week by current or former partners (Brennan 2016b). The work of state or national level government death review committees as well as by non-­ government organisations and independent advocacy groups (for example, Destroy the Joint in Australia, the Femicide Census in England) extends knowledge and insights through counting. The findings of such reviews confirm that IPV continues to be one of the most serious and potentially fatal crimes worldwide. The English Femicide Census, published for the first time in 2016, revealed that 598 women had been killed by a current or former partner in the six-­year period between 2009 and 2015. When population size is taken into consideration similar figures are evident in Australia, where it is documented that each week at least one woman is killed by a man, typically an intimate (ex)partner (Cussen and Bryant 2015). Systematic death reviews have contributed to a growing body of research that acknowledges intimate partner homicides as the most preventable type of homicide because histories of abuse often provide clear indicators of risk (Bugeja et al. 2013; Dearden and Jones 2008; Virueda and Payne 2010). Australian studies have found that IPV contributes to more death, disability and illness for women aged 15 to 44 than any other preventable risk factor (VicHealth 2004; Webster 2016). Acknowledging the number of women killed is a prerequisite to positioning IPV as a serious global security issue warranting national and international attention.

Introduction   5

Contextualising the risk of intimate partner violence Shifts in Western governmental foci since the 1990s mean that the consequences of IPV and its close connection to IPH are increasingly recognised (Mills 1998: 307). Despite this, historical, cultural and social factors linked to gender inequity mean the risk to women’s security represented by IPV and the potential for IPH are not taken seriously (enough). As a result, risk mitigation measures are poorly calibrated to women’s needs and experiences and/or poorly implemented. Legal reforms have changed approaches to IPV in many jurisdictions, but have not yet been successful in confronting the well documented risks of repetition and escalation of such violence, sometimes with fatal results. Risk is central to prevention as it looks to the past to predict and intervene against harmful acts or events. With the rise of what Beck (1992) identified as the ‘risk society’, risk paradigms have been increasingly applied to IPV. Risk assessment is now a standard part of the response to IPV in many countries. Typically, such frameworks attempt to prevent the escalation and repetition of violence and identify women at high risk of repeat violence, serious injury and/ or lethal violence (see, for example, McCulloch et al. 2016). More recently there have been attempts to develop a framework to assess a broader range of abuse, including coercive and controlling behaviour in relationships that may or may not also include physical violence (Myhill and Hohl 2016). Arguably, the rise of risk assessment as a standard response to IPV has been driven as much by the desire to be seen to be doing something (Walklate 2008) as due regard to whether that something actually matched with women’s real lives (Walklate and Mythen 2011) or whether such responses mitigated risk (Goodmark 2012). The pace with which such responses to violence against women have readily travelled the globe (Goodmark 2015; Walklate and Fitz-­Gibbon 2018) is quite remarkable. Yet many, if not all, of those responses continue to be flawed or lacking an evidence base. IPH death reviews, independent police complaints, commission reports and coronial inquests continue to document a litany of basic failures in policing and criminal justice responses to women at risk of escalating and repeated IPV (see, for example, Gray 2016). The extent to which the risk of gendered violence is tolerated or otherwise is not solely or primarily linked to empirical evidence (Ericson and Haggerty 2002). As Dake (1992: 33) argues, shared world-­views ‘provide powerful cultural lenses, magnifying one danger, obscuring another threat, selecting others for minimal attention or even disregard’. Perceptions of risk are partial and gendered (Walklate and Mythen 2014). While IPV is today recognised as a serious legal, human rights and public health issue of global dimensions, the risk of such violence is typically not taken as seriously as the risk of other types of violence. There are still relatively low penalties for those convicted of IPV offences compared to those convicted of perpetrating similar violence in other contexts (Bond and Jeffries 2014). Research demonstrates that breaches of civil orders

6   Kate Fitz-Gibbon et al.

designed to protect victims from repeat violence are often not policed with vigour and that court penalties for proven breaches of such orders remain relatively lenient (WA Dept. of the Attorney General 2008; Sentencing Advisory Council 2009, 2015). A brief overview of the approach to the risk of what we, for argument’s sake, refer to here as public terrorism and private terrorism serves to highlight the continued failure to take the risk of IPV seriously (enough). Critical feminist scholarship has long challenged the dichotomy between the public and private spheres, particularly in relation to the social construction of risk and violence. This dichotomy has historically disadvantaged women by downplaying the harm and risk of ‘private’ violence; exactly the type of violence that presents the most risk to women and their children. In choosing to use the term private terrorism we acknowledge and follow in the footstep of scholars who have made the connection between IPV and other public and more publicly acknowledged types of terror and terrorism. These include Frances Power Cobbe’s (1878) powerful essay on ‘Wife Torture in England’ through to Johnson’s (1995, 2008) foundational work on ‘intimate terrorism’ to the more recent interventions of Pain (2012) on the ‘everyday terrorism’ of domestic abuse. In using the term public terrorism, we acknowledge, but put aside the contention about the term terrorism and what it should be applied to, and use it as it has been used in Western dialogue about national security in particular, to refer to politically, religiously or ideologically motivated violence by non-­state actors (Jackson 2009. Since the 2001 attacks on New York and Washington, countering public terrorism has become a major focus of government policy and security agency activity in a wide range of jurisdictions. This threat now sits at the centre of the West’s contemporary ‘risk portfolio’ (Ericson 2006: 347). Yet, what does this risk entail, and how does it compare to the risk of what we call private terrorism? The Global Terrorism Index (2014) reports that, between 2000 and 2013, 82 per cent of all deaths from terrorism occurred in just five countries (Iraq, Afghanistan, Pakistan, Nigeria and Syria). That same index, in assessing the risk from terrorism in all 192 countries surveyed, placed Iraq at the top with a risk factor of 10, with Australia in 124th place with a risk factor of 0.41. There is no comparable global index of women (or people) killed as a result of IPH. It is clear, however, that, at least in Western countries, the risk of private terrorism is far greater than the risk of public terrorism in terms of lives lost. Outside the first ten countries in this list, fewer than 50 people across all these countries die per year in terrorist activity. In stark contrast, each week in Australia at least one woman is killed by a man, typically an intimate (ex)partner. Between 2002/3 and 2011/12 in Australia nationally 488 women were killed in intimate partner homicides (Cussen and Bryant 2015). Each year in Australia then at least twice as many women are killed as a result of IPV as people killed in the entire 15 years since 2001 as a result of terrorism. In the case of public terrorism, a pre-­emptive approach to risk has been operationalised, empowering police and security intelligence to attempt to

Introduction   7

anticipate threats before they emerge (McCulloch and Pickering 2009; McCulloch and Wilson 2016). This precautionary approach to the risk of public terrorism contrasts with the typically reactive response to violence against women (see Walklate et al. 2017a). While tens of billions of dollars are spent on countering terrorism and other issues deemed to be national security threats, services aimed at preventing IPV and supporting victims and survivors remain under severe strain and in some cases are subject to significant cuts (Lee and Cook 2014; Fitz-­Gibbon et al. 2016). Our purpose in comparing the different approaches to public and private terrorism is not to suggest support for the type of counter terrorism measures that have been implemented. Such measures are convincingly critiqued as contrary to human rights and an imposition on the security of many vulnerable  groups, including women (see, for example, McCulloch and Pickering 2009). Our purpose in this collection is instead to highlight the relative inattention to the everyday insecurity of women’s lives as a consequence of private terrorism in the form of IPV and the failure to count and record the on-­ going costs of such violence. This is important because it suggests that women’s (in)security is not seen or responded to at the level it could be, and we argue should be, when the empirical risk is considered. Despite what is known about the high prevalence of IPV, the costs of such violence and the plethora of legal reforms and social programs aimed at responding to and preventing such violence, it is evident that it remains a relatively tolerated type of violence. IPV is typically not treated as seriously as violence used against strangers and the risk of repeat violence and lethal outcomes is widely tolerated internationally.

Securing women’s lives Security, like risk, is partial and gendered, as the legacy of feminist informed work on women, fear and violence has shown. In bringing together the themes of risk and security, key questions might be: what would a national and international security agenda that took gender seriously look like? How can women’s security be improved by the design and delivery of risk-­informed approaches to IPV that reflect women’s real lives? How might an agenda that takes women’s private security as seriously as national security impact on the prevention of IPH? Mainstream approaches to security are overlaid by taken-­for-granted gender dichotomies such as inside/outside, domestic order/international anarchy, and soft and hard politics. Western countries use the rhetoric of ‘terrorism as our main security problem’ and as the ‘master signifier’ of other security threats (Buzan and Weaver 2009: 274). As such, and despite decades of feminist intervention on questions of violence against women, women’s security remains marginalised (True 2012). This is increasingly evident, as global terrorism has risen on many political agendas so that security becomes conflated with national and international security.

8   Kate Fitz-Gibbon et al.

As feminist scholars, we seek to challenge and reject these dominant frames of securitisation. This Edited Collection presents contributions that contest the constructions of risk and understandings of security in responses to IPV. In bringing together a range of international experts, the book challenges status quo understandings of risk and questions how we can reposition the risk of IPV, and particularly the risk of IPH, as a critical site of global and national security. It brings together contributions from a range of disciplines and international jurisdictions, including from Australia and New Zealand, the United Kingdom, Europe, the United States, North America, Brazil and South Africa. This Edited Collection takes the preventability of the cost of IPV and the toll of IPH as a given and considers the extent to which known risks could be more effectively addressed and responded to by legal and criminal justice systems. In adopting a gendered lens, the collection brings together leading scholars to challenge the separation of the private terrorism of everyday life routinely experienced by women across the globe from public violence. Contributions question how a reconstruction of risk can be operationalised to better ensure the security of women. Here the law has been and continues to be a key site for reform, and this Edited Collection provides the opportunity to examine the extent to which current and proposed responses to IPV across multiple jurisdictions provide the security for women to live free from intimate violence. The collection is divided into three parts. The first focuses on challenges in the contemporary global policy framework. The second considers national security, difference and precarity, while the third examines everyday security and criminal justice questions. Chapters 1 to 5 consider women’s security through various supra national lenses: the international community and war crimes, climate and technological change, colonial legacies, and the way women are treated as objects. Chapter 1 by Anette Bringedal Houge and Inger Skjelsbæk focuses on the continuities and discontinuities of women’s experience of sexual violence and the way it is responded to in different security settings. Drawing on their research in Bosnia Herzegovina and Republika Srpska  they find that conflict-­related sexual violence has gained extraordinary attention, visibility and condemnation. They discuss how the rape-­security nexus at the level of global security politics may impact on women’s security in  post-­conflict societies and conclude by noting that the securitisation of conflict-­related sexual violence does not mean that women in conflict or post-­ conflict experience more security. Chapter 2 by Nancy A. Wonders examines the impact of climate change on gendered forms of violence. She argues that analysis of the gendered harm associated with climate change requires recon­ sideration of concepts, including IPV, risk and security. She uses these concepts, along with a focus on the new concept of slow IPV, to examine ways that the social construction of gender, neoliberalism, and the politics of mobility produce gendered risks, vulnerabilities and insecurities, before examining strategies to achieve both climate and gender justice. Chapter 3 by Bridget Harris considers how the digital world has changed the way violence is enacted while

Introduction   9

simultaneously providing new opportunities and pathways for assistance, advocacy and justice administration. She argues that technology-­facilitated violence has implications for women’s health, wellbeing and security, with particular consequence for those in regional, rural and remote locations. She considers the various ways a ‘spatial lens’ is critical to understanding and responding effectively to contemporary experiences of IPV. Chapter 4 by Floretta Boonzaier reviews empirical research on IPV, sexual violence and other forms of gendered violence to show how the knowledge produced works to construct particular men and women as being at greater risk for violence and perpetration. The effects of academic discourse on gendered violence in South Africa are illuminated to reveal racialised, classed and gendered stereotypes that operate in tandem with media narratives. She argues that acknowledging the ways in which academic work reproduces particular kinds of stereotypes requires carefully avoiding reproducing taken-­for-granted assumptions born out of colonial histories and thinking carefully about how to recognise the complexities of individual lives, subjectivities and experiences. The final chapter in this section, Chapter 5 by Jan Jordan, examines concepts of othering and dehumanisation and the role these play in objectification. Examples from research on IPV are used to demonstrate the objectifying similarities evident in how men perceive and interact with their partners preceding and during abusive episodes. Objectification theory is used to understand how women are affected when they experience on-­going objectification. The focus then broadens to the wider social environment to consider the utility of these concepts within a context of increased bodily surveillance and debates regarding women’s agency. Jordan concludes by emphasising the need to challenge objectification in order to enhance women’s safety and security and argues for the importance of maintaining a structural analysis in an age dominated by discourses reflecting neoliberal individualism. Chapters 6 to 9 concentrate on how ‘difference’ related to ethnicity and immigration status impacts on women’s experience of violence and how such violence is understood, represented and responded to. Chapter 6 by Leda Lozier maps the different ways in which cultural narratives are an important source for both understanding and condoning the nature and extent of violence against women in what has come to be termed ‘The Northern Triangle’. This term includes the countries of Guatemala, Honduras and El Salvador, in which acts of femicide are amongst the highest in the world. This chapter lays out the importance of the intersecting political, economic and social factors against which these narratives, and resistance to them, need to be understood. Chapter 7 by Marie Segrave draws on research with a family violence service provider that services the immigrant community in Victoria, Australia. The chapter maps the ways in which temporary migration status creates specific vulnerabilities to family violence and explores how IPV is sustained and enabled through migration regimes that limit women’s access to support based on their migration status. Segrave argues that the failure to recognise how migration status enables

10   Kate Fitz-Gibbon et al.

abuse and empowers perpetrators extends across borders. She concludes that coercive control of women must be considered beyond the interpersonal to include the role of the state, and that an intersectional analysis of gendered violence must include citizenship and non-­citizenship. Chapter 8 by Gema Varona challenges assumptions in Spanish law and practice related to IPV. She illustrates the way that the practice of law demonstrates a tendency to punish immigrant men and discipline immigrant women and women of ethnic minorities in discriminatory ways. She argues that risk assessment often includes questionable items that deepen discrimination and exclusion. Chapter 9, by Yolanda Ortiz-Rodríguez and Jayne Mooney, emphasises that, although IPV is widespread, women are not necessarily affected in the same way and that making sense of such violence requires that the specificity of women’s experience is understood. They focus on the need to be aware of ‘difference’ between women and relate the findings of their study on IPV and foreign-­born Latinas and US-­ born Latinas in New York City. From women’s discussion of the impact of cultural, socio-­economic and institutional factors, a picture of precariousness emerges, with women facing insecurity due to the ever-­present threat of violence, worries over money, housing, children, losing family and community support, language barriers, fears of deportation and poor treatment by state agencies, which left them ‘isolated’, ‘unprotected’ and ‘abandoned’. The third part of the collection engages with questions about the effectiveness of responses to IPV at various levels of the justice system, including the law, police and courts. Chapter 10, by Thiago Pierobom de Ávila, considers reform in the wake of the Inter-­American Court of Human Rights 2009 judgment in Gonzalez and others vs. Mexico. The Gonzalez decision recognised that the killing of women in that case was motivated by gender discrimination and that the Mexican state had been ineffective in preventing and punishing these crimes. Brazil, along with a dozen other Latin American countries, introduced the crime of femicide after the court’s decision. Ávila explains the way that the new laws are designed to prevent ‘honor killing’ defences in cases of intimate partner homicide, avoid impunity for crimes of violence against women, as well as highlight the importance of policies to enhance gender equality. He offers an overview of the law reform movement in Latin America, explains the rationale for the new legislation, and describes how it has been implemented. He concludes that labelling gendered killings of women as femicide is an important strategy to recognise and understand such phenomena. In Chapter 11, Julia Tolmie raises the difficulties in accommodating victim safety when sentencing for criminal offending. These difficulties occur in a criminal justice system that atomises patterns of harm into incidents. She argues that appraising risk and designing sentences that are attuned to victim safety requires locating the offending within the overall pattern of perpetrator harm, but that there are conceptual, informational and procedural barriers to doing this. The chapter explores those barriers and highlights the shifts needed to improve IPV victim safety through sentencing practices. Chapter 12, by Heather Douglas, focuses on

Introduction   11

civil domestic violence protection orders, which are the most common legal remedy employed by, or on behalf of, women experiencing domestic violence in Australia, Canada, New Zealand, the United Kingdom and the US. The orders aim to prevent a perpetrator of domestic violence from committing further acts of violence. Drawing on qualitative research undertaken in Queensland (Australia), the chapter considers women’s experience of protection orders; whether they find them helpful and, when they do find them helpful, why this is so. Chapter 13, by Holly Johnson and Deborah E. Conners, considers the way that the justice system’s response to IPV has been transformed through various initiatives including mandatory charging and prosecution policies, while debates continue about whether the repressive aspects of state intervention outweigh the potential for empowering abused women. The authors highlight the findings of a study of women who reported IPV to the police in Ottawa, Canada. Their study raises questions about police decision-­making and about attitudes and behaviours that undermine women’s safety and fail to hold perpetrators to account. Chapter 14, by Elizabeth A. Sheehy, considers the implications of recasting men’s violence against women as ‘torture’ at the level of domestic criminal law. She argues that new language has the potential to name ‘gendered harms’, open and sustain the public conversation about male violence against women, convey battered women’s experience of captivity, and redress discriminatory deployment of the term ‘torture’ that limits it to the crimes of state officials primarily committed against male political dissidents. While recognising that criminalisation strategies often rebound on the most marginalised – the poor, the racialised, the Indigenous, and of course, women, she concludes that the harms of torture are so very grave that this strategy must be seriously considered.

Note 1 See, Our Watch, Australia’s National Research Organisation for Women’s Safety (ANROWS) and VicHealth (2015) Change the story: a shared framework for the primary prevention of violence against women and their children in Australia, Our Watch, Melbourne, Australia.

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14   Kate Fitz-Gibbon et al. Mills, L. G. (1998) ‘Mandatory arrest and prosecution policies for domestic violence: a critical review and case for more research to test victim empowerment approaches’, Criminal Justice and Behavior, 25: 306–318. Myhill, A. and Hohl, K. (2016) ‘The “golden thread”: coercive control and risk assessment for domestic violence’, Journal of Interpersonal Violence, doi: 10.1177/0886260516 675464. Pain, R. (2012) Everyday Terrorism: How Fear Works in Domestic Abuse, Centre for Social Justice and Community Action, Durham University and Scottish Women’s Aid. Porter, T. M. (1996) Trust in Numbers: The Pursuit of Objectivity in Science and Public Life, Princeton, NJ: Princeton University Press. PriceWaterhouseCoopers (2015) A High Price to Pay: The Economic Case for Preventing Violence Against Women, Melbourne, Victoria: PricewaterhouseCoopers. Royal Commission into Family Violence (RCFV) (2016) Summary and Recommendations, Melbourne, Victoria: Government of Victoria, Australia. Segrave, M., Wilson, D. and Fitz-­Gibbon, K. (2016) ‘Policing intimate partner violence in Victoria (Australia): examining police attitudes and the potential of specialisation’, Australian and New Zealand Journal of Criminology, doi: 10.1177/0004865816679686. Sentencing Advisory Council. (2009), Sentencing Practices for Breach of Family Violence Intervention Orders Final Report. Melbourne, Victoria: Sentencing Advisory Council. Sentencing Advisory Council. (2015) Sentencing for Contravention of Family Violence Intervention Orders and Safety Notices: Second Monitoring Report. Melbourne, Victoria: Sentencing Advisory Council. Smith, S. G., Fowler, K. A. and Niolon, P. H. (2014) ‘Intimate partner homicide and corollary victims in 16 states: National Violent Death Reporting System, 2003–2009’, American Journal of Public Health, 104(3): 461–466. Sparks, E. and Gruelle, K. (2016) Intimate Partner Violence: Effective Procedure, Response and Policy, Cambridge: CRC Press. Stanko, E. A. (2001) ‘The day to count: reflections on a methodology to raise awareness about the impact of domestic violence in the UK’, Criminal Justice, 1(2): 215–226. True, J. (2012). The Political Economy of Violence against Women, Oxford: Oxford University Press. United Nations Population Fund (2013) The Role of Data in Addressing Violence against Women and Girls, New York: United Nations Population Fund. United Nations Women (2011) In pursuit of justice. Progress of the world’s women. Available from: www.unwomen.org/~/media/headquarters/attachments/sections/library/ publications/2011/progressoftheworldswomen-­2011-en.pdf. United Nations Women (2015) 2015 World Women Report, United Nations. VicHealth (2004) The health cost of violence: measuring the burden of disease caused by intimate partner violence. Available from: www.vichealth.vic.gov.au/search/the-­ health-costs-­of-violence (accessed 12 February 2016). Virueda, M. and Payne, J. (2010) Homicide in Australia: 2007–08 National Homicide Monitoring Program, Annual Report, Canberra, Australia: Australian Institute of Criminology. Walklate, S. (2008) ‘What is to be done about violence against women? Gender, violence, cosmopolitanism and the law’, British Journal of Criminology, 48(1): 39–54. Walklate, S., McCulloch, J., Fitz-­Gibbon, K. and Maher, J. (2017a) ‘Criminology, gender and security in the Australian context: making women’s lives matter’, Theoretical Criminology, doi: 10.1177/1362480617719449.

Introduction   15 Walklate, S., Fitz-­Gibbon, K. and McCulloch, J. (2017b) ‘Is more law the answer? Seeking justice for victims of intimate partner violence through the reform of legal categories’, Criminology & Criminal Justice, doi: 10.1177/1748895817728561. Walklate, S. and Fitz-­Gibbon, K. (2018) ‘Criminology and the violence(s) of northern theorising: a critical examination of policy transfer in relation to violence against women from the global north to the global south’, in K. Carrington, R. Hogg, J. Scott and M. Sozzo (eds), Palgrave Handbook of Criminology and the Global South (pp. 847–865), London: Palgrave. Walklate, S. and Mythen, G. (2011) ‘Risk beyond calculability and theory: experiential knowledge and “knowing otherwise” ’, Criminology and Criminal Justice, 11(2): 99–113. Walklate, S. and Mythen, G. (2014) Contradictions of terrorism: security, risk and resilience, London: Routledge. Watts, C. and Zimmerman, C. (2002) ‘Violence against women: global scope and magnitude’, The Lancet, 359(9313): 1232–1237. Weber, L. and Pickering, S. (2011) Globalization and Borders: Death at the Global Frontier, Basingstoke: Palgrave Macmillan. Webster, K. (2016) A Preventable Burden: Measuring and Addressing the Prevalence and Health Impacts of Intimate Partner Violence in Australian Women (ANROWS Compass, 07/2016), Sydney: ANROWS. Western Australia Department of the Attorney General. (2008), A Review of Part 2 Division 3A of the Restraining Orders Act 1997. Western Australian Government. Women’s Coalition against Family Violence (1994) Blood on whose Hands? The Killing of Women and Children in Domestic Homicides, Melbourne: The Federation Press. World Health Organization and London School of Hygiene and Tropical Medicine (2010) Preventing Intimate Partner and Sexual Violence against Women: Taking Action and Generating Evidence, Geneva: World Health Organization. Available from: www.who.int/reproductivehealth/publications/violence/9789241564007/en/ (accessed 16 April 2018). World Health Organization (2013) Global and regional estimates of violence against women: prevalence and health effects of intimate partner violence and non-­partner sexual violence, World Health Organization. Available from: http://apps.who.int/iris/ bitstream/handle/10665/85239/9789241564625_eng.pdf;jsessionid=A24A7CDE65D5 A257F6B9886684B9BD0A?sequence=1 (accessed 16 April 2018).

Part I

Challenges in the contemporary global policy framework

Chapter 1

Securitising sexual violence Transitions from war to peace Anette Bringedal Houge and Inger Skjelsbæk

It is awful to say [sighs] … but it feels like we need another armed conflict in order to get the attention and funding we need to be able to work with and address sexual and gender-­based violence. (Non-­government organisation [NGO] worker, Sarajevo, November 2015)

Introduction This book addresses how international and national security measures fail to include or prioritise women’s safety and security from male intimate partner violence (IPV) within their state-­centred conceptions of security (see also Ní Aoláin, Cahn and Haynes 2014). Shifting the focus to human – and gendered – security, the various contributions address security politics and measures in relation to ordinary people in their daily lives. In this chapter, we focus particularly on the continuities and discontinuities of sexual violence as it takes place and is responded to in different security settings (see also Buss 2014: 16). In stark contrast to (the lack of ) global security responses to IPV – as pointed out in the previous chapter – conflict-­related sexual violence (CRSV) has gained extraordinary levels of attention, visibility and condemnation at the level of global, or international, security politics during the past decade and a half. From this outset, we ask whether and how the recent and ongoing securitisation of CRSV intersects with and connects to post-­conflict sexual violence. We do this by drawing on feminist security perspectives, extensive research on issues to do with CRSV, as well as insights gained from interviews with gender activists, politicians and stakeholders in criminal, transitional and post-­conflict justice projects in Bosnia and Herzegovina and Republika Srpska. More specifically, we argue that there are three interrelated modes of recognition that form part of the securitisation process: hyper-­visibility, the construction of a hierarchy of harms and criminalisation. Looking at securitisation through these modes of recognition, we discuss how the rape–security nexus at the level of global security politics may impact on women’s security in post-­conflict societies. In doing so, we engage with the ongoing scholarly discussion about the relevance

20   Anette Bringedal Houge and Inger Skjelsbæk

and importance of a continuum perspective on violence against women (Meger 2016; Cohen and Wood 2016; Kirby 2012).

Feminist security studies and gendered securitisation Applying a feminist perspective to issues to do with security includes always asking ‘where are the women’ (Enloe 1990) as well as a consistent questioning of ‘what is assumed to be normal’ (Wibben 2011: 12). As Smith (2005, quoted in Wibben 2011: 7) has realised, ‘looking at security from the perspective of women alters the definition of what security is to such an extent that it is difficult to see how any form of traditional security studies can offer an analysis’. Critical feminist security studies challenge traditional security studies’ exclusive concern with state-­centred and public security, and questions how security is – or should be – perceived. As does a human security perspective, feminist theories on security focus on the lived experiences and consequences of structural, international, national and individual in/security – emphasising how gender and in/ security intersect and work on one another (Hirschauer 2014: 56). From this outset, feminist scholars have asked whether we can in any way talk about a secure state, if its residents do not experience security (Kaldor and Chinkin 2017). This question and the untangling of what is taken for granted in the overall security discourse have steered feminist engagement with issues to do with conflict, peace and security for decades (see also Wibben 2011: 7). Sexual violence is a case in point, as its continuation after the end of conflict exemplifies how security is a highly relative notion, which can mean different things for men and women, collectives and individuals. Boesten and Fisher (2012) remark how, no matter the level of conflict-­related sexual violence, ‘[s]exual violence [both] precedes and survives conflict’. Importantly, violence against women does not necessarily abate at the ‘end of conflict’ (see, for example, Manjoo and McRaith 2011: 13). From this perspective, gendered and sexual violence challenge the very notions of ‘conflict’ and ‘peace’, as sexual violence neither begins with the outbreak of war, nor ends with the formal signing of peace agreements: The terms ‘pre,’ ‘during,’ and ‘post’ conflict bring with them assumptions about breaks or changes in social and political contexts and the everyday lives of women and men. While feminists have sought to challenge the deemed rupture between these divisions … the assumptions about ‘end’ of conflict are difficult to unseat. In the post-­conflict period, presumptions about ‘security’ … can obscure the ways in which women continue to face violence and insecurity. (Buss 2014: 16) In this chapter we address the consequences of these assumptions, focusing on the recent securitisation of CRSV and how it impacts on how we understand

Securitising sexual violence   21

the broader continuum of gendered violence that transgresses ‘war’ and ‘peace’. The term ‘securitisation’ as applied here refers to a process involving a marked shift in the framing of an issue, moving it from the status of a political non-­ concern, or a concern of ordinary politics, to the realm of security politics (see Hirschauer 2014: 5–6). Such a shift is premised on (the construction of ) a specific, exceptional and existential threat, and marks the end of ‘business as usual’, as it evokes the applicability and use of extraordinary measures. That is, it is a shift in framing that expands the toolbox available to policymakers and governments to tackle the threat the issue poses (Hirschauer 2014: 192). For CRSV, this process of securitisation emerged with the wars in the former Yugoslavia and the genocide in Rwanda in the early and mid-­1990s. These conflicts constituted watershed moments in global security politics as they forced ahead global recognition of women’s war experiences as a relevant and international security concern (Hirschauer 2014: 7).

UNSCR 1325 and Bosnia as a case for understanding a broader picture On 31 October 2000, Resolution 1325 (UNSCR 1325) was unanimously adopted by the United Nations (UN) Security Council. This groundbreaking resolution was critically important because it framed women’s wartime experiences as a concern for international peace and security. Importantly, it prominently stated the importance of women’s participation in (military and civilian) peacemaking efforts, and reiterated the international responsibility for women’s particular protection needs during armed conflicts (Tryggestad 2009). The agency approach so clearly articulated in UNSCR 1325 was a new kind of language, rhetoric and ambition at the level of the UN Security Council. However, its implementation has proved to be difficult. UNSCR 1325 asks for changes in social and political structures, in institutional behaviours and societal attitudes. For many politicians, military personnel and others mandated to implement it, the resolution is seen both as too broad and too vague, making it difficult to operationalise its good intentions. In addition, it was felt by many UN member states that the ideas and ideals about gender equality and women’s participation embedded in the text of the resolution embodied Western, and perhaps even Northern, concepts that were now being forced upon people and states with divergent cultural understandings of gender and gender relations. In contrast to the women’s agency orientation, the resolution’s other main concern about women’s protection needs in the context of war had been part of UN language for at least a decade before the adoption of UNSCR 1325. The Beijing Platform for Action stemming from the UN World Conference on Women in 1995 is a case in point, in which two chapters are devoted to women in armed conflict and the focus is exclusively on the special protection needs of women. Portraying women as in need of rescue was – and remains – uncontroversial. The protection of women as a particularly vulnerable group during times

22   Anette Bringedal Houge and Inger Skjelsbæk

of conflict was, thus, a need around which there was already cross-­cultural agreement, and also a task that was easier to conceptualise and operationalise. Protection issues are more pragmatic – often about implementing practical, hands-­on security measures that ensure that defined groups of people are less vulnerable in given situations, such as lights in dark places in refugee settlements, military presence in areas of tension between rival groups and safe houses for women. It is this protection orientation that dominates the follow-­up resolutions to UNSCR 13251 – which primarily focus on women’s security through protection from and prosecution of CRSV (Kirby and Shepherd 2016). Bosnia is a particularly relevant case to examine in order to further our understanding of the ways in which CRSV is securitised and the complexities involved in the process. Bosnia is a country that is still in many ways transitioning from war to peace. While the country is formally independent and self-­ governed, the international presence remains strong. In particular, the role and mandate of the Office of the High Representative (OHR), which was put in place to oversee the civilian elements of the Dayton Peace Agreement (DPA), remain strong. Moreover, the country is deeply divided. The DPA left Bosnia with one of the most complicated government structures in the world: a state divided into two entities (Republika Srpska and The Bosnian Federation), which has resulted in triple (state and entity level) sets of presidencies, ministers and legislature. The system is highly fragmented, and corruption is widespread. Negotiating this landscape is difficult, and women’s legal, social and political status is entangled in ethnic divisions. Not least, it was the wars in the former Yugoslavia, and particularly in Bosnia, from 1992 to 1995, that played the biggest part in bringing CRSV, women’s war experiences and security needs onto the international agenda. As stated, the massive attention and response to the systematic use of sexual violence in Bosnia was key to the successful mobilisation that drove the adoption of UNSCR 1325 (Hudson and Leidl 2015: 24). Domestically, the politicisation of women’s bodies and the targeted victimisation of women placed gender issues explicitly at the centre of ethnicised politics in Bosnia (Hansen 2001; Helms 2013; Mežnarić 1994; Nikolić-Ristanović 2000; Skjelsbæk 2006). According to actors in Bosnian civil society, the adoption of UNSCR 1325 in 2000 provided them with political leverage for their work with women’s rights and gender equality (Björkdahl and Selimović 2015). Sarajevo Open Centre argues, for instance, that the country has made progress in terms of greater political participation by women, an increasing number of women in the police and military forces, and efforts to combat gender-­based violence and support victims of CRSV (Mirović, Hadžić and Miftari 2015; Veličković 2014). Others point out, however, that the adoption of UNSCR1325 does not function as an instrument for any substantial changes in gender dynamics in domestic structures (Björkdahl and Selimović 2015).

Securitising sexual violence   23

From ‘silence’ to ‘hyper-­v isibility’ Prior to the conflict in Bosnia and the genocide in Rwanda, CRSV was rarely acknowledged as anything but a by-­product of war and received only scant attention from policy, advocacy, legal and academic actors alike. That does not, however, suggest that sexual violence did not exist. Far from it. In her study of women in the Viking Age, Jesch (1991: 1–2) asserts that the Vikings would vent their fury on women and monks by maiming, murdering, robbing, pillaging, destroying, enslaving and raping. Jesch also notes that this behaviour was common among the Vikings’ adversaries. The situation during the Roman empire was no different, as Nicolas Poussin’s painting ‘Abduction of the Sabine Women’ indicates, and Richlin’s (2010: 353) overview of sexuality in the Roman Empire reveals, where she describes how the rape of conquered men and women happened on a wide scale and that it was considered an integral part of warfare. The same point can be found in the work of Vigarello (2001), who traces the history of rape in France from the sixteenth to the twentieth centuries. Moreover, rape as a metaphor and metaphors of rape have been part of historic accounts and other forms of war documentation and depiction for centuries. For example, the attack on the Chinese city of Nanking by Japanese soldiers in 1937, resulting in the death of up to 300,000 Chinese civilians, is commonly referred to as the Rape of Nanking. As a direct manifestation of the misuse of power and violence unleashed by war, rape is used as a metaphor for the barbarism of war. However – and ironically so, considering the recognition that lies in the above use of rape as metaphor – as an act in itself, rape has historically been referred to by the use of euphemisms, such as the biblical formulation that ‘you may enjoy the spoil of your enemies’. Considering rape and sexual violence as part of the spoils of war, as a natural consequence of warfare, has historically marginalised the phenomenon of CRSV as a private women’s problem. This, combined with the shame associated with rape and sexual violence (see, for example, Ericsson 2011), has meant that victims’ stories and experiences have been kept at arm’s length from policy and research analysis. As a consequence, we have, historically, known very little about the ways in which rape is used in different wars, why this is the preferred form of violence in certain settings, how the victims and their societies live with these experiences after the war has ended, and what the political impact of these acts of violence might be, both during and after conflict. This historical silence has, however, been disrupted by the voiced experiences of survivors from many conflict zones, beginning with Bosnia and Rwanda, but later also Kosovo, East Timor, Sudan, Sierra Leone, Liberia, the DRC and Syria. Often enabled through public testimonies at international criminal courts from the early 1990s onwards, victims’ stories constitute what Henry (2011) describes as counter memories of war. A massive documentation effort, first by  journalists and then on the part of international NGOs and the UN

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community, was instrumental in bringing about the attention needed to move the international community towards recognition and the establishment of these judicial sites of counter memory. In response to journalists’ claims that rape was being used systematically in Bosnia, several fact-­finding missions focused their efforts on sexual violence in particular. Amnesty International was one of the first organisations to document sexual violence in an ‘organized or systematic way, with the deliberate detention of women for the purpose of rape and sexual abuse’ identified as early as January 1993 (Amnesty International 1993: 7). Then followed a series of reports, from individual journalists, and various UN Commissions (Mazowiecki 1993; Bassiouni 1994) to Human Rights Watch and national organisations and collectives such as the Coordinative Group of Women’s Organizations of Bosnia and Herzegovina, who documented sexual violence alongside other forms of war violence – estimating the number of women raped from 20,000 to 60,000. During the 100 days of genocide in Rwanda in 1994, half a million women were reportedly raped (Organization of African Unity 2000). The estimated numbers, descriptions and reports that followed led to increasing recognition that CRSV constituted a weapon of war, a strategy used not ‘only’ to opportunistically abuse women and release combatants’ stress from the violent experience of warfare, but also as a deliberate tool used to threaten communities, political/religious/ethnic groups and, not least, states (see also Buss 2009: 145–146). As a consequence, sexual violence crimes were eventually prosecuted in ways never seen before at the International Criminal Tribunal for the former Yugoslavia, established in 1993 (Skjelsbæk 2011). This expansion and enforcement of existing international criminal law, premised on a reconceptualisation of CRSV as a national and international security crisis that threatened not only women but also states, constitute a vital part of the securitisation process. Moreover, the massive response to the systematic use of CRSV during the conflicts in the former Yugoslavia in the early 1990s was a central driving force for the adoption of UNSCR 1325 described above. By framing sexual violence as an international security issue, the resolution significantly bolstered the new discourse on gendered violence globally. As a consequence of these highly successful efforts to make women’s voices heard and rape in war visible through means of securitisation, CRSV today ‘rivals nuclear and biological weapons, terrorism, and arms proliferation for receiving the most attention among security actors’ (Meger 2016; see also Hirschauer 2014). When CRSV finally became part of international norm and policy agendas, it did so forcefully (Buss 2014; Engle 2005; Henry 2014) – resulting in numerous UN Security Council Resolutions, a vast and expanding research field, a series of academic and political conferences, prosecutorial prioritisations in national and supranational jurisdictions, the establishment of a number of national and international organisations dedicated to the issue and earmarked funding for efforts to counter CRSV specifically. Accordingly, some critical feminist scholars have begun to denote the

Securitising sexual violence   25

permeating focus on CRSV as ‘a “fetishization” of sexual violence in international security’ (Meger 2016). These critics hold that there has been an over-­ focus on CRSV at the expense of other kinds of gendered violence that happen across the continuum of violence, and in times of peace as well as war. While we do not necessarily agree that the term fetishisation adequately captures the prioritisation of CRSV that we have seen, we agree that there has been a hyper-­visibility of particular forms of gendered violence in conflict. Buss (2009) expands on this concept in her deliberation on the ad hoc international criminal tribunals’ prosecutorial – and rhetorical – focus on sex crimes. Here, hyper-­visibility refers not only to the heightened focus that made CRSV visible in the first place, but also to an excessive focus on and use of dark imagery, which in practice obscure and render ‘individual accounts of rape and sexual violence … invisible’ (Buss 2009: 155; see also Buss 2014). The analyses by Buss (2009, 2014) pay attention to the limitations of re-­presentation of victims and perpetrators, causes and consequences that is produced by international criminal justice, and the consequent erasure of nuances and complexities involved. Transferred to the wider process of securitisation of which prosecution and criminalisation at these tribunals are part, the concept of hyper-­visibility helps draw attention to the conditions under which CRSV has gained notoriety during the past few decades. First, we recognise that securitisation and the associated hyper-­visibility bring about an important and long sought-­after potential to rearrange the social and legal order, and to foster recognition of harms in judicial and political realms where this has previously been absent. In contrast to structural and gendered explanations and conceptions of sexual violence, securitisation – and in particular the construction of a phenomenon as a security crisis – enables a language that makes CRSV ignite in public and policy discourse. The exceptionality and sensationalism undoubtedly serve its purposes (Houge and Lohne 2017). However, and in line with Buss’s concept of hyper-­visibility, it also casts shadows that we need to cater to, and be aware of. In Bosnia, this was acutely felt in the immediate post-­war setting where international actors were more than willing to fund projects and initiatives linked to CRSV, but not projects and initiatives focusing on other forms of gendered violence. Similar tendencies have been reported by scholars in relation to other conflicts and post-­conflict contexts (see, for example, Lemaitre and Sandvik 2014; Autesserre 2012; Baaz and Stern 2013). Beyond sensationalist representations of the individuals involved (Houge 2016; Houge and Lohne 2017), and eschewed funding priorities in the immediate conflict context, the hyper-­visibility of CRSV is contingent on the use of crisis language and thus also a differentiation of CRSV from ‘rape as usual’. A crisis per definition refers to a temporary state – confined not only in time but also in place. Sexual and gender-­based violence as a social phenomenon and problem is not confined in similar ways. The hyper-­visibility of one form of gendered violence – that is, sexual violence committed by armed actors

26   Anette Bringedal Houge and Inger Skjelsbæk

for war purposes – is, thus, a two-­edged sword, impacting not only on the continuum of violence within conflict but also along the temporal continuum of violence that spans beyond. How we can understand the relative invisibility of post-­conflict sexual violence in light of the global security policy concern on CRSV is our focus in the next section.

From weapon of war to a hierarchy of harms When CRSV is defined as a threat to national and international security, as argued in the section above, this conceptualisation ‘elevates’ it from the perceived lesser realm of what one gender consultant in Bosnia denotes as ‘pink women issues’. Pink women issues are conceptualisations of in/security and inequality that emphasise ‘soft’, gendered and structural explanations of inequality and violence, and keep matters important to women ‘at the margins of [influential] politics’ (focus group interview, Sarajevo, November 2015). The image of CRSV as extraordinary arguably makes the continuum of violence of which it is part less visible, and constructs a hierarchy of gendered harms that can be problematic (see also Buss 2014; Autesserre 2012). For instance, when local psycho-­social workers observed an increase in domestic violence in the immediate post-­conflict era in Bosnia, they were unable to secure funding and support to address these concerns because the international donors, on which the Bosnian population was completely dependent, prioritised projects that dealt exclusively with CRSV (psycho-­social health workers in Bosnia, interviewed by Skjelsbæk in September 2001). As the quote opening this chapter illustrates, several of our interviewees working with gender-­based violence in present-­day Bosnia are frustrated that sexual violence in the context of war is conceptualised as an extraordinary, immediate crisis, while all other forms of violence against women are still seen as ‘business as usual’ (focus group interviews with NGO workers, Sarajevo, November 2015). Accordingly, when international donors, researchers and international politicians come to Bosnia or Republika Srpska, they come to hear about the war-­ specific experiences of their interviewees. As one of our research participants pointed out, ‘they are not interested in the current, socio-­economic hardships and political strains that prevent us from living decent lives today’ (politician, Republika Srpska, November 2015). To several of our interviewees, it is the current economic situation, ongoing political corruption and domestic and gender-­based violence in present-­day Bosnia that constitute the crisis, not the physical violence they survived 20 years ago. There are, of course, several aspects that make CRSV and domestic and gendered violence generally distinct phenomena. The violence is produced in sometimes vastly different contexts and under different forms and degrees of pressure, and serves different – more or less articulated – purposes (see Cohen and Wood 2016). The contrast between the urgency associated with CRSV, on the one hand, and the relative invisibility of gendered violence committed by

Securitising sexual violence   27

violent intimate partners, on the other, is nurtured by disparities such as unknown and combatant perpetrators in the case of CRSV, and known and civilian perpetrators in the case of IPV, as well as the distinction between what is considered to be public, political violence and what constitutes ‘private’, apolitical violence (see also Cohen and Wood 2016). For local psychologists, this distinction is a substantial one, which frames the trauma of violence in very different ways, as one interviewee explained: I think that the stigma for women raped during the peace period would be much stronger than towards the women raped during the war. During the war, we thought about our survival, and we thought about ourselves as a group against the enemy. But, in the peace, it is something else. We are not all equal. We have individual issues and lives. And the attitude towards individuals is different. This makes a woman [who experiences rape in the post-­conflict setting] alone in her trauma. (Referenced also in Skjelsbæk 2011: 104) Here, the psychologist points out that post-­conflict gendered violence, which they call domestic violence or civil trauma, is understood very differently from war rape. It is more difficult to evoke an empowering survivor identity for victims in the post-­war setting, because the perpetrator–victim relationship does not run along the ethnic or political lines that signify the national security discourse. In the post-­war setting, rape is a form of violence in which the relationship between the individual men and women involved is brought into question. Relatively similar acts of violence are thus treated radically differently (socially, politically and legally) depending on the degree to which they are politicised and – as we know from sexual violence research generally – depending also on the prior relationship between perpetrators and victims (see, for example, Selinger and Freccero 2015). Yet, interestingly, research has also shown that oftentimes the most common form of sexual violence committed during conflicts is not the violence committed by armed combatants, but the violence perpetrated by intimate partners (Cohen and Wood 2016). The strains and trauma of war experiences may contribute to levels of insecurity and violence at home that are greater than those produced by war itself, as our interviewees in Bosnia over many years have pointed to (see also Buss 2014: 5). Paralleling the distinction between public and private terrorism elaborated on in the former chapter, IPV arguably poses a greater (human) security threat in terms of numbers of victims worldwide than does CRSV – yet soldiers and political, armed conflict make a better security crisis argument than do family relations. Despite the differences between CRSV and post-­conflict violence, these forms of violence remain connected – importantly, including via the ways societal responses to one form of violence are influenced by how we understand and address the other.

28   Anette Bringedal Houge and Inger Skjelsbæk

From impunity to criminal prosecution Criminalisation is the third mode of recognition that performs a key role in the securitisation process. As already addressed, and as others have pointed out (see Kirby 2016), the recent securitisation of CRSV has been decisively oriented towards criminalisation and criminal prosecution, including ‘an array of extraordinary, specific legal measures never “deployed” before through international law’ (Hirschauer 2014: 192). The ad hoc international criminal tribunals established by the UN in the early 1990s have successfully prosecuted sexual violence as war crimes, crimes against humanity, and as constitutive parts of genocide. The urgency of the threat posed by CRSV as now framed made the pleas for prosecution effective where they previously had not been. The case law and practice of these ad hoc tribunals in turn directed the inclusion of such crimes into the statute of the permanent International Criminal Court (ICC) at the turn of the millennium (de Brouwer 2005). Feminist NGOs, academics, lawyers and politicians alike have celebrated these developments as important, victorious steps in organised efforts to make women’s war experiences a matter of international security politics. Indeed, international and national criminal law has become the preferred measure through which the international community responds to CRSV. From being considered part of ‘the inevitable spoils of war’, CRSV has become a favoured cause – ‘fit’ campaign material. This is illustrated also in the series of UN Security Council resolutions on women, peace and security that followed the adoption of UNSCR 1325, as emphasis has increasingly become centred on CRSV and the role and importance of criminal law in combating such violence (Kirby and Shepherd 2016). The securitisation of CRSV has thus made a complex phenomenon communicable, frameable and – through criminal law, seemingly – solvable (Houge and Lohne 2017).2 The turn to criminal law is not new to feminist campaigning that seeks to prevent violence against women. In public debates about rape and domestic violence in both peaceful and post-­conflict societies we can see a parallel reliance on and call for criminal prosecution as the means through which victims can and should be recognised, and causes addressed – both through retribution and deterrence. Often, legal impunity in itself is seen as a root cause of the violence, as Haglund and Richards argue: ‘The climate of impunity in many [societies emerging from civil conflict] results in unprecedented levels of violence against women, making legal implementation and law enforcement particularly difficult’ (2017). We concur with the need to hold perpetrators accountable, and appreciate law’s symbolic, communicative and persuasive potential, as norm provider and moral disciplinarian through its public condemnation of violent acts as crimes (Ní Aoláin, Haynes and Cahn 2011). We have also observed directly that criminal prosecution and ensuing convictions can indeed be an empowering experience for victims who are seen, heard and believed by legal authorities – although this is far from a consistent or universal experience for victims who testify in

Securitising sexual violence   29

criminal courts – be they national or international (see, for example, Henry 2011). We are sceptical, however, of representations of criminal law as both cause (through its absence) and solution (through its enforcement). Criminal law is a valuable tool – but it is also just one tool among many. Critical feminist scholars argue that the individualisation of responsibility that follows from criminal prosecution detaches the phenomenon from the structural and gendered inequalities and the continuum of violence that make it possible. As summarised by Ní Aoláin (2016: 275): Feminist legal and political scholars have neatly pinpointed the problems associated with [the WPS agenda of the UNSC], including the weight of international attention laid on sexual harms to women in war without due consideration to the conditions and inequalities that produce such harms in the first place. With the over-­focus on criminal law and its individualisation of guilt comes a shift of attention away from the necessary long-­term, less slogan-­friendly, structural, societal, socioeconomic changes that are required to prevent gendered harms in all forms – both before, during and after armed conflict.

Conclusion: sexual violence as rupture and continuum ‘[T]he purpose of doing research in Feminist Security Studies is to raise problems, not to solve them’, states Sjoberg (2011: 602). In this chapter, we have highlighted some of the connections between a forceful and dominant securitisation of CRSV and the ways in which sexual violence can be perceived and addressed in transitioning societies after conflict. We hold the process of securitising CRSV to be intimately connected to three modes of recognition that we have denoted as hyper-­visibility, the production of a hierarchy of harms, and the uncritical prioritisation of criminalisation. The emphasis on these three modes of recognition arguably constitutes a valuable entry point to better understand the implications of continuities and discontinuities – of continuum perspectives and differentiation – when addressing and responding to sexual violence in post-­conflict contexts. The approach has been useful to begin to address what Hirschauer (2014: 188) refers to as the ‘securities, insecurities and silences created by the securitization of [conflict-­related] rape – and its ethical impasses’. However, we suggest that the focus on visibility/invisibility, a hierarchy of harms and criminalisation processes may also be relevant to study the securitisation of violence in other forms and contexts. Feminist security studies seek to find a balance between pointing out the lack of recognition or inclusion of women in securitisation processes, on the one hand, and on the other, critique of the costs of securitisation, and asking whether the overall security orientation is at all emancipatory (see Kirby 2016;

30   Anette Bringedal Houge and Inger Skjelsbæk

Nunes 2012). When sexual violence becomes political capital, it tends to raise attention and increase funding for preventive efforts. However, as several research participants working on gender-­based violence in post-­conflict Sarajevo pointed out, it also changes peoples’ motivation for working with these issues and the framing of the problem. Securitisation discourse may elevate the political interest, but it also leads to simpler answers, shorter-­term commitments and detachment from broader structural inequalities (focus group interview, November 2015). Pointing to the often high prevalence of violence against women in post-­ conflict societies, we emphasise the need for a gendered approach not only to global or national security, but also to human security in the aftermath of war. As put by Ní Aoláin, Cahn and Haynes (2014: 210), ‘[s]ocieties that are not safe for women are not safe’ (see also Enloe 2004). Importantly, securitisation is not the equivalent of experienced security. Kirby (2016) points to this important difference between securitisation rhetorics and security in practice. The successful securitisation of CRSV, and the resultant elevated status it attains as an important issue at the tables of hard politics and international criminal justice, does not infer that women in conflict or, importantly, post-­ conflict experience a safer world.

Acknowledgements The authors would like to thank research assistant Elin Martine Doeland for her invaluable help during the fieldwork and for transcribing the interviews referenced in this paper.

Notes 1 For an overview of all the follow-­up resolutions to UNSCR 1325, see: www.un.org/en/ peacekeeping/issues/women/wps.shtml (accessed 30 October 2017). 2 For discussions about the negotiation between structural and situational explanations of participation in collective sex crimes and the individualisation of guilt in sex crimes cases in international criminal law institutions, see Skjelsbæk 2015; Houge 2016; Houge and Lohne 2017.

References Amnesty International (1993) ‘Bosnia Herzegovina: rape and sexual abuse by armed forces’, Amnesty Report, January 1993, AI Index: Eur 63/01/93. Autesserre, S. (2012) ‘Dangerous tales: dominant narratives on the Congo and their unintended consequences’, African Affairs, 111(443): 202–222. Baaz, M. E. and Stern, M. (2013) Sexual Violence as a Weapon of War? Perceptions, Prescriptions, Problems in the Congo and Beyond, London: Zed Books. Bassiouni, M. (1994) Final Report of the United Nations Commission of Experts established pursuant to Security Council Resolution 780 (1992), S/1994/674/Add.2 (Vol. 1) 28/12/1994.

Securitising sexual violence   31 Björkdahl, A. and Selimović, J. M. (2015) ‘Translating UNSCR 1325 from the global to the national: protection, representation and participation in the National Action Plans of Bosnia-­Herzegovina and Rwanda’, Conflict, Security & Development, 15(4): 311–335. Boesten, J. and Fisher M. (2012) Sexual Violence and Justice in Postconflict Peru, United States Institute of Peace Special Report 310, Washington, DC: USIP. Buss, D. (2009) ‘Rethinking “rape as a weapon of war” ’, Feminist Legal Studies, 17: 145–163. Buss, D. (2014) ‘Seeing sexual violence in conflict and post-­conflict societies: the limits of visibility’, in D. Buss, J. Lebert, B. Rutherford, D. Sharkey and O. Aginam (eds), Sexual Violence in Conflict and Post-­conflict Societies: International Agendas and African Contexts (pp. 3–27), London: Routledge. Cohen, D. K. and Wood, E. (2016) ‘Is sexual violence during war exceptional – or a continuation of everyday violence?’, in A.  T.  R. Wibben, ‘Debating (Wartime) Sexual Violence’, Special symposium at International Studies Quarterly. Available from: www. isanet.org/Publications/ISQ/Posts/ID/5239/Is-­sexual-violence-­during-war-­exceptionalor-­a-continuation-­of-everyday-­violence (accessed 30 October 2017). de Brouwer, A-­M. (2005) Supranational Criminal Prosecution of Sexual Violence: The ICC and the Practice of the ICTY and the ICTR, Oxford: Intersentia. Engle, K. (2005) ‘Feminism and its (dis)contents: criminalizing wartime rape in Bosnia and Herzegovina’, American Journal of International Law, 99: 778–816. Enloe, C. (1990) Bananas, Beaches & Bases: Making Feminist Sense of International Politics, Berkeley, CA: University of California Press. Enloe, C. (2004) The Curious Feminist: Searching for Women in a New Age of Empire, Berkeley, CA: University of California Press. Ericsson, K. (2011) ‘Rape, love and war: personal or political?’, Theoretical Criminology, 15(1): 67–84. Haglund, J. and Richards, D. L. (2017) ‘Enforcement of sexual violence law in post-­civil conflict societies’, Conflict Management and Peace Science, 2017. Online first, doi 10.1177/0738894217695536. Hansen, L. (2001) ‘Gender, nation, rape: Bosnia and the construction of security’, International Feminist Journal of Politics, 3(1): 55–75. Helms, E. (2013) Innocence and Victimhood: Gender, Nation, and Women’s Activism in Postwar Bosnia-­Herzegovina, Madison, WI: University of Wisconsin Press. Henry, N. (2011) War and Rape: Law, Memory and Justice, London: Routledge. Henry, N. (2014) ‘The fixation on wartime rape: feminist critique and international criminal law’, Social & Legal Studies, 23: 93–111. Hirschauer, S. (2014) The Securitization of Rape: Women, War and Sexual Violence, Hampshire: Palgrave MacMillan. Houge, A. B. (2016) ‘Re-­presentations of defendant perpetrators in sexual war violence cases before international and military criminal courts’, British Journal of Criminology, 56(3): 419–437. Houge, A. B. and Lohne, K. (2017) ‘End impunity! Reducing conflict-­related sexual violence to a problem of law’, Law and Society Review, 51(4): 755–789 Hudson, V. and Leidl, P. (2015) The Hillary Doctrine: Sex & American Foreign Policy, New York: Columbia University Press. Jesch, J. (1991) Women in the Viking Age, Woodbridge: The Boydell Press. Kaldor, M. and Chinkin, C. (2017) International Law and New Wars, Cambridge: Cambridge University Press.

32   Anette Bringedal Houge and Inger Skjelsbæk Kirby, P. (2013) ‘How is rape a weapon of war?: Feminist international relations, modes of critical explanation and the study of wartime sexual violence’, European Journal of International Relations, 19(4): 797–821. Kirby, P. (2016) ‘The security fetish’, in A. T. R. Wibben, ‘Debating (wartime) sexual violence’, Special symposium at International Studies Quarterly. Available from: www.isanet. org/Publications/ISQ/Posts/ID/5237/The-­Security-Fetish (accessed 30 October 2017). Kirby, P. and Shepherd, L. J. (2016) ‘The futures past of the women, peace and security agenda’, International Affairs, 92(2): 373–392. Lemaitre, J. and Sandvik, K. B. (2014) ‘Beyond sexual violence in transitional justice: political insecurity as a gendered harm’, Feminist Legal Studies, 22: 243–261. Manjoo, R. and McRaith, C. (2011) ‘Gender-­based violence and justice in conflict and post-­conflict areas’, Cornell International Law Journal, 44: 11–31. Mazowiecki, T. (1993) Situation of Human Rights in the Territory of the Former Yugoslavia Submitted by Mr Tadeusz Mazowiecki, Special Rapporteur of the Commission of Human Rights, Pursuant to Commission Resolution 1992/S-­1/1 of 14 August 1992, UN Doc. E/CN.4/1993/50, 10 February. Meger, S. (2016) ‘The fetishization of sexual violence in international security’, International Studies Quarterly, 60(1): 149–159. Mežnarić, S. (1994) ‘Gender as an ethno-­marker: rape, war and identity in the Former Yugoslavia’, in V. M. Moghadam (ed.), Identity Politics and Women: Cultural Reassertion and Feminism in International Perspective (pp. 76–97), Boulder, CO: Westview. Mirović, D., Hadžić, I. and Miftari, E. (2015) Annual Report on the State of Women’s Rights in Bosnia and Herzegovina in 2014, Sarajevo: CURE Foundation and Sarajevo Open Centre. Available from: http://soc.ba/site/wp-­content/uploads/2015/04/Rights-­ of-women_HRP-­7_FINAL_novi.pdf (accessed 30 October 2017). Ní Aoláin, F. (2016) ‘The “war on terror” and extremism: assessing the relevance of the women, peace and security agenda’, International Affairs, 92(2): 275–291. Ní Aoláin, F., Cahn, N. and Haynes, D. F. (2014) ‘A gendered reading of security and security reform in post-­conflict societies’, in D. Buss, J. Lebert, B. Rutherford, D. Sharkey and O. Aginam (eds), Sexual Violence in Conflict and Post-­Conflict Societies: International Agendas and African Contexts (pp. 193–215), London: Routledge. Ní Aoláin, F., Haynes, D. F. and Cahn, N. (2011) On the Frontlines: Gender, War, and the Post-­Conflict Process, Oxford: Oxford University Press. Nikolić-Ristanović, V. (2000) ‘Sexual violence’, in V. Nikolić-Ristanović (ed.), Women, Violence and War: Wartime Victimization of Refugees in the Balkans (pp. 41–77), Budapest: Central European Press. Nunes, J. (2012) ‘Reclaiming the political: emancipation and critique in security studies’, Security Dialogue, 43(4): 345–361. Organization of African Unity (2000) Rwanda: the preventable genocide – The report of the international panel of eminent personalities to investigate the 1994 genocide in Rwanda and the surrounding events. Available from: www.refworld.org/docid/4d1da 8752.html (accessed 30 October 2017). Richlin, A. (2010) ‘Sexuality in the Roman Empire’, in D. S. Potter (ed.), A Companion to The Roman Empire (pp. 327–353), Malden, MA: Wiley-­Blackwell. Selinger, K. T. and Freccero, J. (2015) The Long Road: Accountability for Sexual Violence in Conflict and Post-­Conflict Settings. Online. Berkeley, CA: Human Rights Center, UC Berkeley School of Law. Available from: www.law.berkeley.edu/wp-­content/uploads/ 2015/04/Accountability_report_2015_final_web2.pdf (accessed 30 October 2017).

Securitising sexual violence   33 Sjoberg, L. (2011) ‘Looking forward: conceptualizing feminist security studies’, Politics and Gender, 7(4): 600–604. Skjelsbæk, I. (2006) ‘Victim and survivor: narrated social identities of women who experienced rape during the war in Bosnia-­Herzegovina’, Feminism and Psychology, 16(4): 373–403. Skjelsbæk, I. (2011) The Political Psychology of War Rape: Studies from Bosnia and Herzegovina, London: Routledge. Skjelsbæk, I. (2015) ‘The military perpetrator: a narrative analysis of sentencing judgments on sexual violence offenders at the International Criminal Tribunal for the Former Yugoslavia (ICTY)’, Journal of Social and Political Psychology, 3(1): 46–70. Tryggestad, T. L. (2009) ‘Trick or treat? The UN and implementation of Security Council Resolution 1325 on Women, Peace, and Security’, Global Governance, 15(4): 539–557. Veličković, M. (2014) Parties, Elections, Parliaments: Women in Politics in Bosnia and Herzegovina, Sarajevo: Sarajevo Open Centre. Available from: http://soc.ba/site/wp-­ content/uploads/2014/09/marina_eng.pdf (accessed 30 October 2017). Vigarello, G. (2001) A History of Rape: Sexual Violence in France from the 16th to the 20th Century, Cambridge: Polity. Wibben, A. T. R. (2011) Feminist Security Studies: A Narrative Approach, London: Routledge.

Chapter 2

Climate change, the production of gendered insecurity and slow intimate partner violence Nancy A. Wonders

Scholarly attention to the risk and harm associated with climate change continues to grow as a result of robust scientific assessments that significant environmental transformations are occurring in the wake of anthropogenic global warming. Yet, relatively little research has examined the impact of climate change on gendered forms of violence. This chapter argues that analysis of the gendered harm associated with climate change requires a critical and feminist reconsideration of several key concepts, including intimate partner violence (IPV), risk and security. It then uses amplified versions of these concepts – with a focus on the new concept of ‘slow intimate partner violence’ – to examine the ways that the social construction of gender, neoliberalism and the politics of mobility produce gendered risks, vulnerabilities and insecurities. The chapter also examines strategies to achieve both climate justice and gender justice. Strategies to reduce global warming and the gendered harm associated with environmental disasters must focus on root causes at the global and structural level, while recognising that the best hope for transformative change may come at the local level through the actions of ordinary people.

Gendering climate change: reframing IPV, risk and security Global warming is not a theory; it is a well-­documented reality that is already altering physical and social life on the planet (IPCC 2015; Klein 2014). According to the highly respected scientific assessment of the Intergovernmental Panel on Climate Change (IPCC): human influence on the climate system is clear, and recent anthropogenic emissions of greenhouse gases are the highest in human history … [with] widespread impacts on human and natural systems.…Warming of the climate systems is unequivocal, and since the 1950s, many of the observed changes are unprecedented over decades to millennia. The atmosphere and ocean have warmed, the amounts of snow and ice have diminished, and sea level has risen. (IPCC 2014: 2)

Climate change and gendered insecurity   35

Despite these profound global changes, many of the analytical tools employed by social scientists have remained static and have not adapted to the new realities created by global warming; in particular, many key concepts fail to reflect a gendered analysis of the etiology and impacts of climate change. As MacGregor (2014: 627) points out: In different ways, the universalization of the issues has resulted in a lack of structural analysis of both the root causes and the differential impacts of climate change. We are invited to debate the science and the conduct of scientists rather than to analyze the historical forces, hierarchical power relations, and value systems that have caused, and are standing in the way of addressing, the current predicament. In order to interrogate the relationship between climate change and gendered harm, several key concepts must be expanded to more adequately capture the challenges posed by global warming. Here, I want to discuss three concepts that require amplification in view of climate change: IPV, risk and security. Violence against women has long been – and continues to be – a global justice challenge (Devries et al. 2013). As Belknap (2015: 289) notes, ‘Violence against women has been called the most common and most invisible human rights violation in the world’. IPV is particularly widespread, with the World Health Organization (WHO) reporting that ‘30% of ever partnered women globally have experienced physical or sexual violence by a partner in their lifetime’ (WHO 2010). When considering the link between climate change and IPV from a broad, sociological and criminological perspective, it is essential to go beyond a view of IPV as strictly an individual-­level phenomenon. IPV must be viewed as part of a larger continuum of gendered violence that is deeply linked to broader structural, cultural and environmental forces (Barberet 2014; Walklate 2008). While most conceptualisations of IPV focus on individual-­level behaviour that causes harm, it is important to emphasise that behaviour is always situated within particular contexts and multiscalar realities that condition how environmental changes will impact women, as well as the likelihood that violence will occur. Global warming is linked to significant contextual changes, including an increase in environmental disasters such as rising sea levels, floods, droughts and desertification, as well as an increase in extreme weather events (IPCC 2014, 2015). While many of the environmental and social dynamics that underlie anthropogenic climate change are globally produced, they are always experienced locally. In this way, climate change is multiscalar; and efforts to understand and alter global warming must take into account the global, national and local levels. Research on environmental disasters has evidenced a relationship between such disasters and increases in violence and conflict (Miller 2017; Parenti 2011), including IPV (True 2012). While some impacts of global warming are sudden and severe, many occur gradually, over time. For this reason, I wish to

36   Nancy A. Wonders

argue that climate change requires that we expand our conceptualisation of IPV to consider various forms of ‘slow violence’ (Nixon 2011). Nixon (2011: 2) defines slow violence as ‘a violence that is neither spectacular nor instantaneous, but rather incremental and accretive, its calamitous repercussions playing out across a range of temporal scales’ with impacts that may not be realised for years or even centuries. He argues that emphasising the ‘temporal dispersion of slow violence affects the way we perceive and respond to a variety of social afflictions, from domestic abuse to post-­traumatic stress and, in particular environmental calamities’ (Nixon 2011: 3). Expanding IPV to incorporate the forms of slow violence associated with global warming makes it possible to better capture the way that gendered harm is experienced within relationships and contexts challenged by new climate realities, including the way that ‘climate change threatens to increase existing inequalities … and gender inequality is one of the most pervasive of these’ (Dankelman 2010: 14). In her work on the Pacific Islands, George (2014: 315) has stretched the concept of slow violence to ‘identify the sources of violence, beyond those associated with “hot” conflict, that contribute to women’s insecurity in the region’. I wish to further stretch the concept by proposing the term ‘slow intimate partner violence’ (SIPV) to capture both the structural and temporal dimensions of IPV associated with climate change. SIPV refers to a range of cultural, political and economic dynamics that incrementally, over an extended period of time, produce gendered risks and insecurities. A focus on SIPV allows us to focus more sharply on the structural dynamics that underlie global warming and that slowly but certainly increase the likelihood that gendered violence will occur. An extensive theoretical and empirical literature on IPV has established many structural, community-­level and cultural dynamics that shape individuals’ likelihood of utilising violence within the context of their intimate relationships. Some of these dynamics are especially important for foreshadowing the increased risk and danger that climate change creates for women and which are constitutive of SIPV. These include the link between the increased use of violence and: poverty and resource deficiencies (WHO 2017), the cultural and legal creation of a private sphere for social reproductive work that is largely unprotected by the state (Caulfield and Wonders 1993; Federici 2004), the cultural production of hegemonic masculinities (Messerschmidt 2013), and gender inequalities (Belknap 2015; True 2012). In this chapter, I draw on the research on gendered violence, as well as more recent research on gender and climate change, to examine three dynamics that are productive of gendered vulnerabilities to global warming: the social construction of gender, neoliberalism and the politics of mobility. Consistent with Nixon’s (2011) framing, I argue that these dynamics operate as forms of slow interpersonal violence because of the significant and corrosive harm they create within women’s interpersonal relationships and everyday lives and because these forms of SIPV are major ‘threat multipliers’ when environmental disasters occur, producing women’s risk and vulnerability, and insecurity.

Climate change and gendered insecurity   37

In addition to stretching what constitutes IPV, it is also important to extend our understanding of ‘risk’ in view of new climate realities. Risk framings have profound impacts within contemporary society. Risk is not just an assessment of threat; risk framings can also be viewed as political projects that operate to create shared values, communities of concern, and action. Risk framings are also gendered; as Walklate and Mythen (2011: 11) note, ‘narratives of risk and risk assessment render some concerns more visible and valuable than others’. For example, as noted in this volume’s introduction, the choice to frame terrorism as a national and global security risk in many Western countries, despite relatively few victims of terrorism, is sharply at odds with the choice to ignore the stunning numbers of victims of IPV in those countries. Similarly, although significant adverse consequences of global warming have been well documented, many politicians and corporate leaders deny these risks and do not view climate change as an important security threat. As Detraz (2017a: 208) writes, ‘power relations in a society determine who has the authority to speak about risk and whose perception of risk influences policy-­making’. The fact that some well-­documented dangers and risks do not rise to the level of a national or global security threat reveals risk framings to be exercises of power that are shaped by and constitutive of socially constructed inequalities. As McCulloch and Wilson (2016: 10) note, ‘threats to the planet posed by global warming and other serious environmental harms have not been constructed as existential threats warranting a precautionary approach’; similarly, ‘despite the ubiquity of everyday, domestic, home-­based terror inflicted on women and children and the steady flow of homicides linked to family violence, these crimes have not galvanized authorities to take a preemptive approach’ (McCulloch and Wilson 2016: 11). Indeed, the failure of nation-­states to effectively stem violence against women could be considered a political crime of omission given its well-­documented pervasiveness (Caulfield and Wonders 1993). Rather than discussing risk as a given, we must view risk framings as political projects that reflect and produce inequalities, including gender inequalities. Security framings and discourses are similarly value laden and politically charged and must also be viewed as political projects that are reflective and constitutive of gendered (and other) inequalities. As McCulloch and Wilson (2016: 11) put it, ‘security prioritizes some people and some interests over others with no necessary match between the extent of potential harm and selected priorities’. In addition, securitisation tends to depoliticise issues since, once something is labelled as a security threat, there is a tendency to accept the utilisation of extreme measures without question – ‘it has a performative force – it organizes social relations into security relations’ (Robinson 2011: 42). Importantly, ‘security and climate change discourses are gendered’ (Detraz 2017a: 202). Most security frames regarding climate change focus on the security of nations rather than on the security of ordinary people. This framing renders many of the human impacts of global warming invisible, including those related

38   Nancy A. Wonders

to gender. Not only are security discourses about global warming state-­centric, but climate change is also frequently framed as a ‘crisis’ warranting further securitisation, inviting masculinised, militarised solutions (Nagel 2015, 2016; White 2014). ‘We need to be wary of discourse that creates an inevitability of catastrophic climate change, leading to a sense of resignation that the planet is doomed’ (Nayar 2014: 116). In contrast, feminist and critical approaches to security shift the focus away from nations and towards human beings as the focal point for security claims. Human security prioritises the security of people over nations and allows for consideration of the complex ways that larger structures shape life chances in the face of global warming (Robinson 2011). This shift ‘focuses attention on the potential pathways to addressing threats, risk, and vulnerabilities rather than suggesting that the climate apocalypse is upon us’ (Detraz 2017a: 211). Armed with broadened conceptualisations of IPV, risk and security, I now turn to an analysis of the gendered relationship between IPV and global warming and the production of gendered insecurity.

Climate change and vulnerability: the production of gendered insecurity This section examines three of the most important dynamics that produce greater risk, insecurity and harm for women in the face of global warming. First, I briefly examine the complex role that the social construction of gender plays in the etiology and impacts associated with climate change, particularly the way that gender constructions are linked to the production of gendered vulnerabilities to harm. Second, I examine the ways that neoliberalism exacerbates gendered risks and insecurities by heightening women’s precariousness, devaluing social reproduction and the private sphere, and exacerbating global inequalities. Third, I explore climate-­induced migration through a gender lens and examine how the contemporary politics of mobility heighten the risks and slow violence that women experience when environmental disasters occur. Although analytically distinct, the synergies and intersections between the slow, corrosive harms caused by gender inequalities, neoliberalism and the politics of mobility are at the heart of women’s greater risk, vulnerability and insecurity during the environmental disasters associated with global warming; and these dynamics might usefully be considered forms of slow intimate partner violence. The social construction of gender inequality and global warming An extensive body of feminist scholarship has detailed the historic and contemporary dynamics involved in the social construction of gender and the way that gender inequalities are a central organising feature of contemporary life (Lorber 2011; Wonders 2018a, 2018b). However, only recently has a feminist

Climate change and gendered insecurity   39

and gender-­sensitive lens been applied to the global challenge of climate change (Dankelman 2010: Detraz 2013, 2014, 2017b; Detraz and Windsor 2013) and even more rare is research that explicitly focuses on gender and climate change within criminology (see, however, Wachholz 2007; Wonders 2018c; Wonders and Danner 2015). Unfortunately, when gender has been considered in climate change research, analyses often focus exclusively on women’s greater vulnerability to harm, where ‘Vulnerability refers to that which makes actors more susceptible to threats or makes it more difficult to overcome security threats’ (Detraz 2017a: 206). However, as many scholars have noted, the ‘feminization of vulnerability’, which frames women as vulnerable victims, tends to essentialise women and diminish and deny their agency (Detraz 2017a; Djoudi et al., 2016; Terry 2009). Instead, it is crucial to emphasise that vulnerability is a produced condition. In reality, gender operates as both a cause and consequence of global warming. Socially constructed masculinities are central to the production of global warming (Enarson 2014), while discourses about women’s vulnerability are not simply consequences of gendered social stratification, but are also productive of it (see Wonders and Danner 2015 for a detailed explication of the relationship between masculinities, femininities and climate change). Gender is a relational process in which the marginalisation of women is constitutive of the power and privilege enjoyed by men (Wonders 2018b). The growing body of research on gender and natural disasters is useful for considering how and why the social construction of gender synergistically multiplies the risk of harm for women during extreme weather events or other environmental catastrophes (Cuomo 2011; Detraz 2017a; True 2012). This research has found that socially constructed resource deficiencies linked to gendered social relations are pivotal for producing women’s greater risk of harm and death in the wake of natural disasters. In general, women have less access to resources that are essential in disaster preparedness, mitigation and rehabilitation. Gendered divisions of labour often result in the over-­representation of women in agricultural and informal sectors, which are vulnerable to disasters. Lack of energy sources, clean water, safe sanitation and health challenges, often put extra burdens on women’s shoulders, adding to their reproductive and caregiving tasks (Dankelman 2010: 59). In her thorough review of the current research on gender and climate change, Pearse (2017: 12) concludes that ‘the social organization of women’s reproductive labor in different socioeconomic and cultural circumstances shapes the immediate “factors” (e.g. poverty, education, property and income sources) associated with women’s higher risks and climate change–related burdens’ (Pearse 2017: 12). This division of labour is not ‘natural’; instead, the gendered social organisation of reproductive labour and the relegation of this work to the private, unpaid sphere of the home, has been achieved historically and cross-­culturally through the systematic use of coercion, threat and various forms of interpersonal violence (Federici 2004, 2012; Sheffield 2007). Perhaps

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not surprisingly, current research suggests that gender-­based violence, including IPV, increases in the wake of environmental disasters, in part because disasters unsettle everyday life to such an extent that normative assumptions about who ought to be responsible for reproductive work are challenged – as are power relations within the household (Dankelman 2010; Quan 2015; True 2012). Given that gendered vulnerability is produced and closely linked to access to resources, it must also be acknowledged that environmental damage is dialectically productive of gendered inequalities. As Dankelman and Jansen (2010: 35) explain: A degrading environment is an important driver in the increase of poverty and inequity. This is also reflected in changing power relationships in society, community and family, among genders. Women’s access to and control over natural resources and technology generally decreases more than that of male members of households. Women often lose control over resources, production and management, and become more marginalized and excluded. Indeed, gendered resource inequality might be considered a form of SIPV given the strong research evidence that ‘higher gender inequality … is associated with higher gender-­based abuse’ (Belknap 2015: 298, emphasis in original). Neoliberalism and global warming Neoliberalism has had a particularly pernicious role in heightening women’s precariousness, thus contributing to the production of women’s greater vulnerability to climate change. ‘Neoliberalism works by colonizing the field of value – reducing all social values to one market value’ (Povinelli 2011: 134). In addition, ‘neo-­liberalism strongly opposes all forms of social solidarity in favor of individualism, private wealth and personal responsibility’ (Keddie 2010: 139). When adverse social and environmental transformations are generated by the neoliberal economy, responsibility is placed on individuals to simply adapt to these new realities (Bumiller 2008). These logics about personal responsibility create a very adverse dynamic in the face of global warming and the parallels to IPV are striking. For example, when women experience domestic violence, it is common for people to ask, ‘why doesn’t she just leave?’ Research has evidenced that women do leave – typically many times – but the gendered structural contexts of their lives, particularly their economic dependence on men, create profound pressures to return (Barberet 2014; Belknap 2015). Neoliberalism creates a parallel dynamic with respect to climate change; those in the way of environmental harm are expected to leave and when they do not (or cannot) avoid harm and danger, the burden of responsibility is too often placed upon their individual choices. However, the structural barriers that make it difficult to

Climate change and gendered insecurity   41

either escape from or adapt to the environmental destruction associated with global warming are significant; it is crucial to also point out that such barriers are gendered. When suggesting actions for those who care about climate change, popular environmentalist discourse tends to emphasize personal responsibility, or the need to shift desires on the demand side, but instant replacements for existing technologies, materials, and forms of transportation are not readily available everywhere. (Cuomo 2011: 702–703) Instead of responsibilising climate challenges, ‘We need to examine the connections between the violence of unjust, non-­sustainable economic systems and the growing frequency and brutality of violence against women’ (Shiva 2014b: xiv). Neoliberalism exacerbates the global inequalities that are closely linked to heightened risk and vulnerability. As Keddie (2010: 140) elaborates: Although producing new prosperity and growth for a variety of sectors and regions, its predominant impact has been the generation of growing inequalities, both within and between countries and the intensification of the inequitable distribution of resources and power along racialized, gendered, and classed lines … the ways in which neo-­liberalism has deepened the impoverishment and marginalisation of women – especially women already oppressed by circumstances of poverty and race – are well documented. The extreme valorisation of the market at the expense of the commons produces risk and insecurity for everyone, but particularly for those most dependent on the commons for survival; it is noteworthy in this regard that most of the world’s farmers are women who depend on the land for survival (Wonders and Danner 2015). The structural adjustment policies and new forms of land enclosure that have accompanied global capitalism have further heightened women’s vulnerability by creating widespread land displacement, pressure for women to work in export processing zones, a crisis of care as women move into paid employment, and global migration, with women now constituting roughly half of all global migrants (Federici 2012; Shiva 2014a; Wonders and Danner 2002). Scientists anticipate that the poorest parts of the world, particularly the Global South and tropical zones, will be hit hardest by environmental changes associated with global warming, further exacerbating existing inequalities (Parenti 2011). Many scholars have examined the link between neoliberalism and climate change, including those who focus on the way that resource ‘extractivism’ lies at the heart of neoliberalism (Klein 2014) and those who argue that it is the rise of consumption as a driver of economic growth, combined with emission-­intensive

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production, that has fuelled the global inequalities that underlie climate change (Pearse 2017). Across this literature there is a widely shared view that neoliberal globalisation is ‘fatally implicated’ in creating many of the contemporary global threats and security crises (Robinson 2011: 79). ‘Nature’s economy – through which environmental regeneration takes place – and the people’s subsistence economy – within which women produce the sustenance for society through “invisible” unpaid work called non-­work – are being systematically destroyed to create growth in the market economy’ (Shiva 2014a: 75). This process represents an incremental and slow form of violence that is productive of gendered risks, vulnerabilities and insecurities. Gender and the politics of mobility One of the most important contemporary global dynamics is international migration. Even without considering climate change, in the wake of globalisation and neoliberalism: the urbanization of the global population – from 18 percent at the beginning of the twentieth century to nearly 50 percent at the end – has led to important changes in community, work, and family life, including the inability of extended families to live together and the need for more adult family members to take up paid employment away from the home. (Robinson 2011: 67) Climate change and accompanying environmental disasters are – and will continue to be – accelerators of this global trend, and the impact will not be evenly spread across population groups (Kramer and Michalowski 2012; Sassen 2014). The United Nations (UN) has estimated that, by 2050, at least 250 million people will be displaced (Miller 2017). Research suggests that ‘women and children are particularly affected by disasters, accounting for more than 75 percent of displaced persons’ (Robinson 2011: 57). Although human survival has long depended upon migration, today people on the move are increasingly framed as security threats (Detraz 2017a; Miller 2017). Squire (2011) calls the contemporary struggle over the meaning of mobility, citizenship and irregularity ‘the politics of mobility’. This struggle increasingly results in the securitisation of migration and mobility as a tactic of governance designed to socially sort, socially control and criminalise migrants and refugees rather than to assist them (Gerard 2014; Pickering and McCulloch 2012; Weber 2013, 2015; Wonders 2015). Miller (2017: 28) argues that ‘border enforcement is not only growing, but is increasingly connected to the displacement caused by a world of fire, wind, rain, and drought’. Although environmental disasters associated with climate change are already a significant driver of global mobilities, there is currently ‘no legal framework … that would give refugee status to a person fleeing a climate-­induced event’; as a consequence, in

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many countries not only is there a shortage of humanitarian aid but there is also an increased tendency to arrest, detain and deport those displaced by environmental catastrophes (Miller 2017: 64). Yet, research has evidenced that the criminalisation of migration has tended to increase the harm associated with migration, and women face a heightened risk of violence at every stage of the migration journey (Gerard 2014; Pickering and Cochrane 2013). While a great many women are displaced during environmental disasters, some research suggests that when women are partnered with men, it is the man who more frequently migrates in search of greater economic security (Obokata, Veronis and McLeman 2014). When socially constructed gender roles dictate that men should migrate to seek work in the wake of environmental disasters, women left behind experience a slow form of intimate partner violence. Men’s decision to leave frequently means that there are fewer hands to repair and rebuild and, additionally, the privatised responsibilities of home life and care work then fall exclusively upon women, further limiting the time available to them for income production, educational pursuits or political engagement. Women left behind are also at heightened risk of sexualised violence from other men (Pickering and Cochrane 2013). As Obokata, Veronis and McLeman (2014: 125) assert, ‘In other words, migration can indirectly bring about a range of side effects from further environmental deterioration to economic and social instability’. As has been described in detail, the dynamics associated with the social construction of gender, neoliberalism and the politics of mobility work together to create significant gendered risks, vulnerabilities and insecurities for women. While it is important to emphasise that women have agency and that ‘female’ is not to be viewed as synonymous with ‘victim’, sadly, these produced vulnerabilities often translate into a far greater likelihood that IPV will occur, whether at the interpersonal level or via the slow forms of IPV that shape women’s daily lives and make them unable to leave or survive the harm associated with environmental disasters. Examining how the social construction of gender, neoliberalism and the politics of mobility produce gendered vulnerabilities reveals that power and privilege are concealed within contemporary framings of violence, risk and security. Women are made vulnerable and dependent so that men might benefit from their reproductive labour which largely remains relegated to the unpaid private sphere (Federici 2004). Because those without resources experience restricted mobility and have less capacity to escape environmental harm, those with resources can benefit from their precariousness and vulnerability. Difference constructions must be understood as projects for creating not just disadvantage, but also privilege (Wonders 2018a). Ultimately, a thorough analysis of the social production of vulnerabilities linked to climate change must go well beyond gender to include class, race and other socially produced differences (Nagel 2012; Wonders 2018c). An intersectional lens can ‘shed light on and problematise norms and underlying assumptions that are naturalised and

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regarded as common sense, but build on and reinforce social categorisations and structures of power, not least through institutional practices’; an intersectional approach also encourages us to ‘turn our gaze toward economic elites and the Western countries’ if we wish to challenge the dynamics that produce vulnerabilities to global warming (Kaijser 2013: 428).

Climate justice and gender justice Given the complex interplay between global warming and gender inequalities, it is essential to wed calls for climate justice with those for gender justice if we want to reduce the gendered violence associated with global warming. As noted previously, contemporary approaches to climate change tend to ignore the impacts of gender stratification on the etiology and impacts of global warming; the same has been true with respect to policies and strategies aimed at achieving climate justice (Djoudi et al. 2016). Effective strategies must consider how insecurity is produced and target the root causes of both global warming and gendered violence if we are to achieve effective and lasting change. As I have sought to evidence, this requires a critical reframing of understandings of IPV, risk and security. In this section, I suggest some focal points for social change that have promise for reducing both global warming and slow intimate partner violence, and altering the relationship between these two dynamics. To achieve climate justice, it is crucial to acknowledge that discourses about the risk and security threats associated with global warming are political, as are proposed strategies to cope with climate change. ‘The more recent framework of “climate justice” challenges climate change analysis and policies that are driven by science and instead recognizes that climate change in fact emerged through economic and political systems’ (Nayar 2014: 112). Despite this recent recognition, to date most of the literature examining responses to climate change focuses rather narrowly on mitigation, adaptation and resilience. Policies aimed at mitigation typically seek to reduce the production of carbon dioxide and greenhouse gases – a critically important objective – while those focusing on adaptation aim for people to learn to live with the effects of climate change. Yet, as Bendlin (2014: 683) explains, ‘Mitigation and adaptation are not a given, but are conditioned by gender roles’. Importantly, mitigation and adaptation policies are typically crafted in gender-­blind ways that ‘tend to reproduce and consolidate existing inequalities’ (Bendlin 2014: 691). Further, both adaptation and resilience are ultimately policy approaches that do not challenge the etiology of global warming or its impacts; instead, they tend to presume the inevitability of climate change (Methmann and Oels 2015). Without a gender lens, either approach can inadvertently increase women’s vulnerability to harm and violence; as Djoudi et al. (2016: S248) write, ‘if the root causes of vulnerability are not taken into account, potential solutions might exacerbate rather than reduce existing injustices, while leaving challenges of climate change unaddressed’.

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I agree with Detraz and Windsor (2013: 139) that addressing inequality – not just gender inequality, but all forms of inequality – must be an essential component of strategies to confront climate change: Policymaking should be geared toward addressing/removing the sources of vulnerability that lead to environmental insecurity. This does not mean essentializing the experiences of women, or suggesting that all women are equally vulnerable or vulnerable in the same ways, but rather to focus on the social, political and economic factors that marginalize groups within society – including women. Such strategies would involve taking measures to address the forms of slow violence that produce the inequalities associated with risk and vulnerability to global warming. Reframing the dynamics that produce vulnerability by calling them ‘slow intimate partner violence’ is a valuable tactic for highlighting the way that women’s security is compromised by systemic, structural forces that gradually corrode their capacity to alter or respond to environmental change. Further, this approach directs attention to the root causes of the gender inequalities that are productive of both IPV and global warming and this focus suggests different priorities for social change. For example, Detraz (2017a: 211) emphasises the need to increase ‘women’s access to health care, literacy, and other components tied to well-­being’, including increased access to assets, services and information, and, perhaps most importantly, including women in decision-­ making. The pursuit of gender justice must also focus on ‘reproductive labor as both the basis for movement mobilization and a site of struggle’ (Pearse 2017: 11). Additionally, we must continue to challenge the slow violence that has accompanied neoliberalism and that creates ever greater precarity for almost everyone (Klein 2014; Wonders and Danner 2015). Framings of risk and security are central to the political struggle over responses to climate change and the harm that is associated with environmental destruction. Many scholars argue that security framings about global warming should not focus on ‘state/national security’ but on either human rights (Bendlin 2014) or human security (Detraz 2014). Both perspectives prioritise people as the focal point of discourses about security, but human rights perspectives tend to be state-­centric since ‘framing climate change impacts as human rights violations obligates states, according to the principle of equality and non-­discrimination, to counteract inequalities causing a particular vulnerability to climate change’ (Bendlin 2014: 689). In contrast, from a human security perspective the burden of responsibility for change is multiscalar; thus, a human security approach is better able to address harms that occur in the  private sphere of the home as well as the kinds of slow violence associated  with global warming (Bendlin 2014; Robinson 2011). ‘The collective response to the climate crisis is changing from something that primarily takes place in closed-­door policy and lobbying meetings into something alive and

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unpredictable and very much in the streets (and mountains, and farmers’ fields and forests)’ (Klein 2014: 295–296). As has been emphasised, while global warming and the kinds of SIPV described above are locally experienced, many of the drivers that exacerbate both are actually global in character. For this reason, one central focus for change has been international organisations of nation-­states, like the UN. However, while international initiatives are crucial, the UN has not been particularly effective at ensuring gender mainstreaming or gender equity in representation on important decision-­making bodies, or in pressing nations to implement and enforce climate treaties or conventions aimed at addressing the structural and institutional sources of violence against women (Wonders and Danner 2015). In part, the ineffectiveness of international bodies is linked to what has been called ‘the sovereignty crisis’ – or the inability of nation-­states to protect those within national borders from global challenges, particularly given the global neoliberal turn which has decentred the nation-­state as an effective protector of ‘security’ (Barber 2017; Sassen 2014; Wonders 2016). Because of the relative impotence of international bodies and nation-­states to effectively mitigate global warming, the local level has begun to draw significant theoretical and activist attention as a focal point for social change (Barber 2017; Wonders 2015). Although much of the climate change discourse focuses on rural impacts, the reality is that urban areas now contain the great majority of humanity and so will quantitatively experience the greatest impact from climate change. For this reason, as Barber (2017: 16) explains: The agency and actions needed are urban and local rather than national. Cities are home to more than half of the human population and more than three-­quarters of the population of developed nations. They generate 80 percent of global GDP as well as 80 percent of greenhouse gas emissions. They also suffer the lion’s share of the economic damage from extreme weather events and sea-­level rise. Khosla and Masaud (2010: 79–80) concur, ‘cities and towns are inevitably key sites for actions to adapt and mitigate the harmful impacts of changing climatic regimes’. While political activism must continue to be directed at international and national bodies, there must simultaneously be a focus on the local level given the potential for cities to achieve substantial change with respect to global warming. As Raymond et al. (2014) argue, many of the successes associated with movements seeking to address climate change and violence against women have resulted from successful normative reframings of these issues by activists working in local communities, from the ground up. It is important to remember that there was a time when air pollution blanketed all the major cities in the North and West and when cigarette smoking in public was normative. Similarly, there was a time when men could legally beat their wives in almost every country of

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the world and when domestic violence shelters and orders of protection did not exist at all. The effort to redefine the risk, harm and insecurities associated with climate change and gendered violence is an ongoing political struggle that must be waged at a multiscalar level if it is to be successful in creating lasting change. Ultimately, in order to develop effective sustainable strategies that address the gendered impacts of climate change it is essential to include women and other marginalised groups in decision-­making roles from the very beginning (Wonders and Danner 2015). This recognition has led to the development of many feminist, women-­centred and gender-­sensitive initiatives at the local level that reflect the feminist principle that the ‘personal is political’ by taking seriously specific historic and cultural contexts. These initiatives reflect ‘a locally invested, grassroots ecological cosmopolitanism that imagines “acting globally” – not just thinking globally – but acting globally through thousands of local scale solutions to protect the planet’ (DiChiro 2011: 233). This local-­level work frequently facilitates heightened self-­sufficiency, interdependence and collaboration which have the potential to offer powerful community-­level protections to women by providing them with a public presence and supportive relationships beyond the private space of the home. Building a locally grounded security architecture rooted in human security (rather than state security), democratic and inclusive decision-­making, and a commitment to environmental stewardship and preserving the commons offers an important alternative model for how to achieve both gender justice and climate justice simultaneously.

Towards a sustainable and nonviolent future Climate change is not in the distant future, it is already occurring. Gendered violence is a longstanding global challenge that is exacerbated by the environmental destruction and human displacement that global warming generates. I have argued that it is essential to amplify conceptualisations of IPV, risk and security if we want to make visible the way that slow violence produces and multiplies the gendered vulnerabilities associated with global warming. Instead of placing the burden on individuals to simply adapt to climate change or leave violent relationships, it is essential to develop strategies that confront and alter the cultural, political and economic dynamics that produce the risks and security threats that women so frequently experience in their everyday lives and in the face of global warming. Confronting and eliminating the gendered violence associated with climate change will require renewed attention to the global, contextual and cultural drivers of inequality and violence in all of its forms and engaged political action at every level in pursuit of both climate justice and gender justice. Significantly, and encouragingly, if gendered risks, vulnerabilities and insecurities are produced, they can certainly be changed.

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Climate change and gendered insecurity   49 Federici, S. (2012) Revolution at Point Zero, Oakland, CA: PM Press. George, N. (2014) ‘Promoting women, peace and security in the Pacific Islands: hot conflict/slow violence’, Australian Journal of International Affairs, 68(3): 314–332. Gerard, A. (2014) The Securitizaton of Migration and Refugee Women, New York: Routledge. Intergovernmental Panel on Climate Change [IPCC] (2014) ‘Climate Change 2014: synthesis report’. Available from: www.ipcc.ch/report/ar5/syr/ (accessed 1 August 2017). Intergovernmental Panel on Climate Change [IPCC] (2015) ‘Fifth assessment report: Summary for policy makers’. Available from: www.ipcc.ch/pdf/assessment-­report/ar5/ wg1/WG1AR5_SPM_FINAL.pdf (accessed 8 February 2015). Kaijser, A. (2013) ‘Climate change through the lens of intersectionality’, Environmental Politics, 23(3): 417–433. Keddie, A. (2010) ‘Neo-­liberalism and new configurations of global space’, Journal of Gender Studies, 19(2): 139–152. Khosla, P. and Masaud, A. (2010) ‘Cities, climate change, and gender: a brief overview’, in I. Dankelman (ed.). Gender and Climate Change: An Introduction (pp. 78–96), London: Earthscan/Routledge. Klein, N. (2014) This Changes Everything: Capitalism vs. the Climate, London: Allen Lane/ Penguin. Kramer, R. C. and Michalowski, R. J. (2012) ‘Is global warming a state-­corporate crime?’, in R. White (ed.), Climate Change from a Criminological Perspective (pp. 71–88), New York: Springer. Lorber, J. (2011) Gender Inequalities: Feminist Theory and Politics, New York: Oxford University Press. MacGregor, S. (2014) ‘Only resist: feminist ecological citizenship and the post-­politics of climate change’, Hypatia, 29(3): 617–633. McCulloch, J. and Wilson, D. (2016) Pre-­crime: Pre-­emption, Precaution and the Future, London: Routledge. Messerschmidt, J. (2013) Crime as Structured Action: Doing Masculinities, Race, Class, Sexualities, and Crime, Lanham, MD: Rowman & Littlefield. Methmann, C. and Oels, A. (2015) ‘From “fearing” to “empowering” climate refugees: governing climate-­induced migration in the name of resilience’, Security Dialogue, 46(1): 51–68. Miller, T. (2017) Storming the Wall: Climate Change, Migration, and Homeland Security, San Francisco, CA: City Lights. Nagel, J. (2012) ‘Intersecting identities and global climate change’, Identities: Global Studies in Culture and Power, 19(4): 467–476. Nagel, J. (2015) ‘Gender, conflict and the militarization of climate change policy’, Peace Review: A Journal of Social Justice, 27: 202–208. Nagel, J. (2016) Gender and Climate Change: Impacts, Science, Policy, New York: Routledge. Nayar, A. (2014) ‘Climate non-­negotiables’, in G. Sen and M. Durano (eds), The Remaking of Social Contracts: Feminists in a Fierce New World (pp. 105–123), London: Zed Books. Nixon, R. (2011) Slow Violence and the Environmentalism of the Poor, Cambridge: Harvard University Press. Obokata, R., Veronis, L. and McLeman, R. (2014) ‘Empirical research on international environmental migration: a systematic review’, Population and Environment, 36: 111–135.

50   Nancy A. Wonders Parenti, C. (2011) Tropic of Chaos: Climate Change and the New Geography of Violence, New York: Nation Books. Pearse, R. (2017) ‘Gender and climate change’, Wiley Interdisciplinary Reviews: Climate Change, 8: 2, e451, doi: 10.1002/wcc.451. Pickering, S. and Cochrane, B. (2013) ‘Irregular border crossing deaths and gender: where, how and why women die crossing borders’, Theoretical Criminology, 17(1): 27–48. Pickering, S. and McCulloch, J. (2012) Borders and Crime: Pre-­crime, Mobility, and Serious Harm in an Age of Globalization, London: Palgrave Macmillan. Povinelli, E. A. (2011) Economies of Abandonment: Social Belonging and Endurance in Late Liberalism, Durham: Duke University Press. Quan, R. J. D. (2015) ‘Securing women’s rights amid the changing climate’, Atteneo Law Journal, 60: 98–125. Raymond, L., Weldon, S. L., Kelly, D., Arriaga, X. B. and Clark, A. M. (2014) ‘Making change: norm-­based strategies for institutional change to address intractable problems’, Political Research Quarterly, 67(1): 197–211. Robinson, F. (2011) The Ethics of Care: A Feminist Approach to Human Security, Philadelphia: Temple University Press. Sassen, S. (2014) Expulsions: Brutality and Complexity in the Global Economy, Cambridge, MA: Harvard University Press. Sheffield, C. J. (2007) ‘Sexual terrorism’, in L.  L. O’Toole, J.  R. Schiffman and M.  L. Kiter Edwards (eds), Gender Violence: Interdisciplinary Perspectives (pp. 111–130), New York: New York University Press. Shiva, V. (2014a) ‘The impoverishment of the environment: women and children last’, in M. Mies and V. Shiva (eds), Ecofeminism (pp. 70–90), London: Zed Books. Shiva, V. (2014b) ‘Preface’, in M. Mies and V. Shiva (eds), Ecofeminism (pp. xiii–xxix), London: Zed Books. Squire, V. (2011) The Contested Politics of Mobility: Borderzones and Irregularity, London: Routledge. Terry, G. (2009) Climate Change and Gender Justice, Warwickshire, UK: Practical Action Publishing/Oxfam. True, J. (2012) The Political Economy of Violence against Women, New York: Oxford University Press. Wachholz, S. (2007) ‘ “At risk”: climate change and its bearing on women’s vulnerability to violence’, in P. Beirne and N. South (eds), Issues in Green Criminology (pp. 161–185), Cullompton: Willan. Walklate, S. (2008) ‘What is to be done about violence against women: gender, violence, cosmopolitanism and the law’, British Journal of Criminology, 48: 39–54. Walklate, S. and Mythen, G. (2011) ‘Beyond risk theory: experiential knowledge and “knowing otherwise” ’, Criminology & Criminal Justice, 11(2): 99–113. Weber, L. (2013) Policing Non-­citizens, London: Routledge. Weber, L. (2015) Rethinking Border Control for a Globalising World: A Preferred Future, New York: Routledge. White, R. (2014) ‘Environmental insecurity and fortress mentality’, International Affairs, 90(4): 835–851. (WHO) World Health Organization (2010) Intimate Partner Violence. Online. Available from: www.who.int/gho/women_and_health/violence/intimate_partner/en/ (accessed 1 August 2017).

Climate change and gendered insecurity   51 (WHO) World Health Organization (2017) World Report on violence and health: violence by intimate partners. Available from: www.who.int/violence_injury_prevention/­violence/ global_campaign/en/chap4.pdf?ua=1 (accessed 1 August 2017). Wonders, N. A. (2015) ‘Transforming borders from below’, in L. Weber (ed.), Rethinking Border Control for a Globalising World: A Preferred Future (pp.  190–198), London: Routledge. Wonders, N. A. (2016) ‘Just-­in-time justice: globalization and the changing character of law, order, and power’, Critical Criminology 24(2): 201–216. Wonders, N. A. (2018a) ‘Conceptualizing difference’, in S. Prior and L. Jones (eds), Investigating Difference: Human and Cultural Relations in Criminal Justice (pp.  8–21), New York: Pearson. Wonders, N. A. (2018b) ‘Gender, crime, and justice’, in S. Prior and L. Jones (eds), Investigating Difference: Human and Cultural Relations in Criminal Justice (pp.  69–90), New York: Pearson. Wonders, N. A. (2018c) ‘An intersectional approach to climate change’, in S. Prior and L. Jones (eds), Investigating Difference: Human and Cultural Relations in Criminal Justice (pp. 165–184), New York: Pearson. Wonders, N. A. and Danner, M. (2002) ‘Globalization, state-­corporate crime, and women: the strategic role of women’s NGOs in the new world order’, in G. W. Potter (ed.), Controversies in White Collar Crime (pp. 401–416), Lexington: Anderson. Wonders, N. A. and Danner, M. (2015) ‘Gendering climate change: a feminist criminological perspective’, Critical Criminology, 23(4): 401–416.

Chapter 3

Spacelessness, spatiality and intimate partner violence Technology-­facilitated abuse, stalking and justice administration Bridget Harris Perpetrators of intimate partner violence (IPV) use an array of ‘spatially diffuse’ tactics that extend into ‘the familiar world “outside” ’, past the ‘private’ domains generally associated with domestic violence (Stark 2007: 208). Increasingly, this has been accomplished by the use of technology. This newer spaceless terrain has received little academic attention – a significant oversight given its impact on the experiences of and responses to intimate partner abuse and stalking. Devices, information communication technology (ICT – that which enables telecommunication, access to information and management of intelligence systems) and the internet can enact harm, but can also be used by victim/survivors to connect with informal and formal supports, including social networks, advocacy organisations and criminal justice agents. Technology, then, can facilitate violence, yet can also empower women and enhance their sense of security, as well as transform regulation processes. Seeking to develop frames to understand technology-­facilitated violence (abuse and stalking enacted using technology), I begin this chapter by exploring theoretical and definitional issues. I then discuss victim/survivor experiences and patterns of perpetration observed in my own work and the literature at large.1 I maintain that the broader social context must be considered in order to understand IPV. Accordingly, I examine how shifting individual, cultural and social factors might result in the normalisation of spaceless violence. The setting in which violence occurs also matters. While unpacking and foregrounding the concept of spacelessness in this chapter, I emphasise that the notions of place and space continue to warrant attention. The physical and ideological zones victim/ survivors occupy ultimately shape the potential and perils of technology. Women residing in regional, rural and remote locations are subjected to particular dangers when exposed to technology-­facilitated violence, yet technology can also be used to overcome social and geographic isolation and extend access to justice. In closing, I question whether police and courts can harness technology to create a new space for victim/survivors and state agents to combat and respond to violence which transcends fixed boundaries and barriers.

Spacelessness, spatiality and IPV   53

Theorising spatiality To extend our understanding of victimisation and risk we need to position IPV in a spatial framework. Place and space are not axiomatic terms, but have been imagined and articulated by theorists in a multitude of ways. De Certeau’s (1984) work is key in identifying the nuances between these two concepts. He proposes that place ‘implies an indication of stability’ (referring to fixed geo­ graphic locations) such as those that can be charted and located on a map (117). Place, he explains, is to space ‘like the word when it is spoken’. He perceives space to be ‘practiced place’; temporally created, forged and changed by the actors and actions that pass through a location (de Certeau 1984: 124). Essentially, then, spaces can be conceived as ‘fora where philosophies, power and control are expressed and resisted’; and thus ‘any study of space involves a study of both the practical and ideological components of an area’ (Harris 2016: 70). As scholars in the burgeoning field of ‘Southern Criminology’ (Carrington, Hogg and Sozzo 2016) have noted, there are geographic and symbolic expanses, including those beyond the cityscape, where IPV has received relatively little attention. Metropolitan experiences are cast as universal, yet the incidents and impacts of and responses to IPV are markedly different in regional, rural and remote zones (George and Harris 2014). Here – in these places and spaces – spaceless violence, advocacy and justice administration have particular implications. The ways in which perpetrators use technology to extend harm, isolation and control are heightened, but technology might also be used to assist, protect and empower women, and to administer justice (Harris 2016). Using a spatial framework we could say that devices, the internet and ICT are channels that are temporally shaped and transformed by acts and actors. Yet spaceless zones are borderless, not bound to any physical location and so cannot be understood as spaces as de Certeau envisioned. It is this feature that distinguishes spacelessness from place and space, and must be examined as ‘new technologies complicate how women experience violence as well as how they are able to protect themselves’ (Mason and Magnate 2012: 107). Such channels can, at worst, become mechanisms to enact harm, exclude and discriminate, and some commentators claim that these media can engender misogynistic spaces (Dragiewicz et al. 2018). Certainly, the ‘prevalence of abuse’ in online realms cannot be viewed in a vacuum because, as Salter (2017: 6) explains, there is a ‘fundamental congruency between the values which inform design and administration and those that inform the use of abuse and harassment’. This conceptualisation is noteworthy as it challenges the assumption that technologies ought to be regarded simply as neutral zones. On this, the architecture of devices and platforms could perhaps be equated to place as conceived by de Certeau, while the governance of such mediums and the users and actions can be seen as creating spaces.

54   Bridget Harris

Recognising and defining spaceless violence Technology-­facilitated violence represents new measures of coercive control – an ‘extension of violence that is already being perpetrated in the relationship’ (Lyndon, Bonds-­Raacke and Cratty 2011: 3178; see also Dragiewicz et al. 2018; Woodlock 2017). As the uptake of digital media and devices has increased so has their presence in intimate relationships, providing additional channels to  invade victim/survivors’ lives (Fox, Osborn and Warber 2014; Hand, Chung and Peters 2009; Southworth et al. 2005). Our insight into this phenomenon is limited by a paucity (albeit growing volume) and disparate body of work.  Complicating the issue, thus far no universal definitions have been developed and employed by the researchers, state agencies or services. The absence of any shared classification hinders comparative analysis and, of greater concern, limits initiatives to combat the incidence of violence (Harris and Woodlock forthcoming). In the bulk of completed studies on technology and violence, commentators position technology (as a medium) as central, as opposed to the acts (abuse and stalking) and actors (unknown or known contacts) or the arena (the context in which behaviour has occurred). Most research centres on ‘electronic dating violence’ (see, for instance, Lucero et al. 2014; Reed, Tolman and Ward 2016; Reed et al. 2016; Wolford-­Clevenger et al. 2016). A secondary field of inquiry is ‘social media surveillance’ that includes degrees of high-­level ‘obsessive’ monitoring, unwanted contact and privacy violations (Fox and Warber 2014; Lyndon, Bonds-­Raacke and Cratty 2011; Muise, Christofies and Desmarais 2009; Utz and Beukeboom 2011). Such literature sheds light on how technology features in the lives of participants and is used to create spaces of violence. Existing discourse is useful but comparisons between studies are not possible where shared scales or measures have not been utilised. A host of studies have identified correlations between technology-­facilitated violence and other forms of abuse and stalking (see, for example, Barter et al. 2017; Draucker and Marstolf 2010; Melander 2010; Marganski and Melander 2015; Temple et al. 2016), yet the broader relationship context in which violence occurs is not always highlighted. Sex differences in the meaning and impact of behaviours have not been well accounted for in some studies (Dragiewicz et al. 2018; Harris and Woodlock forthcoming). Such nuances may be obscured because of the operationalisation, or lack thereof, of harm and impact in some studies. Relationships between victims and offenders may also be obscured when scholars do not distinguish between technology-­facilitated aggression and violence against friends and that against intimate partners (Bennett et al. 2011). It is certainly possible that those subjected to technology-­facilitated intrusion, harassment and surveillance will not experience other forms of abuse (physical, sexual, emotional, psychological or financial) and (‘traditional’) in-­person stalking in the confines of a romantic relationship. However, anecdotal evidence from research with survivors of IPV indicates that most are now experiencing technology-­facilitated abuse and a

Spacelessness, spatiality and IPV   55

significant proportion, technology-­facilitated stalking alongside offline violence (George and Harris 2014; Harris 2016). All-­encompassing terms like ‘cyberstalking’ and ‘cyber harassment’ (Melander 2010; Wick et al. 2017), ‘online harassment’ (Finn 2004) and ‘online violence’ (Lumsden and Morgan 2017) adopted in some investigations are indicative of attempts to conceptualise technology-­facilitated violence via a broader lens. In fact, key commentators have situated spaceless violence by intimate partners as one element of ‘technology related violence against women’ (Association for Progressive Communication 2011), ‘online violence against women’ (Abdul Aziz 2017), ‘online abuse and gender-­based violence against women’ (Internet Governance Forum 2015), ‘cyber-­violence against women’ (United Nations Broadband Commission Working Group on Gender 2015) or ‘cybermisogyny’ (West Coast LEAF 2014). Such positioning has been valuable because it acknowledges that victimisation is gendered and occurs in a multitude of forms and environments. Furthermore, attention to the broader context of online abuse illuminates the links between the violence to which women are exposed in ‘private’ (committed by known persons) and ‘public’ spaces (more often carried out by strangers).

Experiences of spaceless violence Classifications of technology-­facilitated violence need to be flexible and adaptable, revised and revisited, evolving alongside technology and techniques of offending. It is, nonetheless, vital to seek a working definition. Ideally, this will be developed in consultation with victim/survivors, advocates and criminal justice agents and will be without geographic constraints – that is, not governed by states, territories or national borders. In addition, technology-­facilitated abuse might be identified as separate from technology-­facilitated stalking as they constitute different legal definitions and behaviours (Harris and Woodlock forthcoming; see also George and Harris 2014). In essence, technology-­facilitated abuse might be framed as the use of technology to send or post defamatory or abusive acts and communications, harass or defame, post personal information or material about (including images of ) a victim/survivor, impersonate a victim/survivor or another individual with the intent to intimidate or cause harm, and cause an unauthorised function on a victim/survivor’s device (their computer, tablet or phone) or impair functions on their device (George and Harris 2014; Harris and Woodlock forthcoming). In Landscapes of Violence, we found that most victim/survivors were bombarded with abusive text and social media messages, such as ‘forty-­two an hour’ in one case, and in another, while the victim/survivor was present at court (George and Harris 2014: 157). Several women received phone calls from persons impersonating police officers, seeking to intimidate and dissuade them from formally responding to the violence. Perpetrators mounted campaigns against victim/­ survivors, seeking to humiliate and degrade them, such as by attacking their

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mothering, often accompanied by sexualised references (George and Harris 2014). Technology-­facilitated stalking can refer to the use of technology and techniques to trace the actions, movement and communications of a victim/survivor; access a victim/survivor’s actual or virtual property, accounts or online profiles; and use software, applications and apparatus to track a victim/survivor (such as Spyware programmes, keystroke loggers and location-­based software, George and Harris 2014; Harris and Woodlock forthcoming). Victim/survivors consulted for Landscapes of Violence noted that abusers had sought to restrict and monitor their use of technology during their relationship and post separation. This included reviewing their communications (such as use of ICT, text messages, voice calls, social media profiles and internet histories). Perpetrators also accessed victim/survivors’ accounts and profiles, often changing information and authority on accounts, and it was incredibly difficult (and time intensive) for these women to regain control of their digital lives (George and Harris 2014). Links between technology-­facilitated and traditional stalking were evident, such as when location-­based technology was also used to track and locate victim/ survivors.

Spaceless perpetrator networks The spaceless element of technology-­facilitated violence ensures that the ‘concept of “feeling safe” from an abuser no longer has the same geographic and spatial boundaries it once did’ (Hand, Chung and Peters 2009: part 3, n.p.). Women can be exposed to violence anywhere they access a device, account or profile, creating a sense of perpetrator ‘omnipresence’ (George and Harris 2014; Harris and Woodlock forthcoming; Woodlock 2017). The invasive and ubiquitous nature of borderless violence can be compounded by perpetration networks. Sometimes others are not actively recruited but are compelled or encouraged to engage in harassment because of an abuser’s campaigns. For instance, in Landscapes of Violence, one victim/survivor reported that her former partner used social media to discredit her allegations of violence and to foster support for himself. In this public forum, ‘everyone wrote on it [his posts] saying “we should get them [me and my new partner]” ’ and ‘horrible things about what I was, what a horrible mother’ (George and Harris 2014: 160). In Landscapes of Violence we found that it was not uncommon for perpetrators to overtly commission ‘people in their network (friends and family members) to perpetrate technology-­facilitated abuse or stalking against a survivor’. One woman, for example, received messages from her abuser, claiming that ‘I know where you were last night, I had photos taken, you weren’t with the kids’ (George and Harris 2014: 157, 161). The threat of being under surveillance (through traditional and/or technology-­facilitated stalking) by a collective intimidates victim/survivors and communicates that a perpetrator’s reach is unlimited. Family members (including children) and friends can be ‘proxy’

Spacelessness, spatiality and IPV   57

stalkers, enlisted to watch and harass women via technology (Dutton and Goodman 2005). The anonymity and instantaneous features associated with digital communications and perpetrator networks can heighten fears and perceptions of danger as everywhere (see also Fascendini and Fialová 2011). Collectives engaging in spaceless violence are often derived primarily from a perpetrator’s ‘real-­world’ relationships. Such webs can be understood by drawing on DeKeseredy and Schwartz’s work (1993; see also DeKeseredy 1990) on male peer-­support theory. They posit that, in patriarchal societies, ‘abusive patriarchal men’ may have like-­minded allies who develop, share and then reinforce beliefs and values that support violence, and offer resources and guidance that ultimately ‘allows men to feel normal and justified when committing violence against current and former intimate partners’ (DeKeseredy and Schwartz 2016: 4). This support can transcend real-­world engagements, with online networks like gaming communities enacting technology-­facilitated abuse and stalking by proxy (Harris and Woodlock forthcoming; see also Salter 2017). DeKeseredy and Schwartz (2016: 6) assert that ‘[w]e are now seeing the rapid development of patriarchal online communities with members who never come into face-­toface contact with each other but frequently exchange written, audio and visual communication with their peers’. As Dragiewicz and Burgess (2016) and DeKeseredy, Dragiewicz and Schwartz (2017) discuss, online spaces where misogynistic groups with different degrees of structure ‘meet’ may feature in and facilitate spaceless violence.

Normalisation of spaceless violence Evidence is emerging that technology-­facilitated violence might be more or differently normalised than traditional forms of abuse or stalking. In the interest of developing prevention initiatives and seeking to protect and empower women, there must be greater analysis of how spaceless violence is perceived and the degree to which it is being legitimised. International studies have found high rates of controlling behaviour exercised through technology (Harris and Woodlock forthcoming). These prevalence rates may indicate that such acts are somewhat tolerated or seen as standard in intimate relationships. In a study focusing on young adolescents, Kings-­Ries (2011: 155) maintains that teens are ‘experiencing power and control patterns in their relationships through technology’ and ‘tend to believe that what is happening to themselves or their peers is normal’ (see also Lucero et al. 2014). One of the few studies to look at a broader age range (Ybarra et al. 2017: 3) found that, of the 3002 American respondents, aged 15 years and older, ‘three times as many younger people (22 per cent) as those who were 30 years or older (8 per cent) reported being digitally harassed by a current or former romantic partner’. Academics have hypothesised that youths use technology at higher levels than do their older cohorts and are therefore more likely to experience and normalise technology-­facilitated violence. However, this is a flawed

58   Bridget Harris

assumption (George and Harris 2014). Our insight has undoubtedly been skewed by the preoccupation with teenage and youth subjects. While few studies have focused on other generations, Cavezza and McEwan (2014) found that the average age of cyberstalkers in their sample was 37 years. Similarly, in Woodlock’s pioneering 2013 Australian study on technology-­facilitated domestic violence, the average age of victim/survivors was 35 years, ‘suggesting that, despite the widespread perception that technology-­facilitated abuse is occurring amongst young people, our research shows that it is happening to older women too’ (21). While technology is altering the way people of all ages form and maintain romantic relationships, we know little about these dynamics or their implications. The parameters for socially acceptable monitoring and controlling behaviours may be shifting on and offline, influenced by an array of technological, individual and cultural factors. Like more traditional forms of abuse, technology­facilitated stalking may not be identified as such, ‘[b]ecause repeated contact [for example] can so closely model what we see as “romantic” behaviour’ (Woodlock 2013: 20). The continuing mass appeal of popular culture ‘romances’ (such as the Twilight and 50 Shades of Grey franchises) that feature coercive control and gendered violence, including technology-­facilitated violence, indicate that normalisation of violence continues in the face of anti-­violence campaigns (Bonomi, Altenburger and Walton 2013; Deller and Smith 2013; Durham 2012; Taylor 2014; van Reenen 2014). Young and adult women have been the audience of the former, and older women (in the 30–50-year age bracket) the latter saga (see Brennan and Large 2014; Paris 2016). Of course, such popular culture examples are not universally consumed or accepted, and there has been resistance to and rejection of these portrayals of interpersonal relationships. However, contrary to popular assumption that perceptions are changing, the mass consumption of such narratives may be indicative of a persistent or even increasing tolerance of violence (including technology-­facilitated violence) by a range of age groups in Western societies. Popular culture reflects and shapes ‘real life’ perceptions of coercive control and violence. On this issue, Flood and Fergus (2008: 4) assert that: [f]rom a young age, all children and young people are exposed to an array of messages condoning discrimination and violence against women from a number of sources, including the media, pornography and ‘macho’ peer cultures in institutions from schools to sporting clubs. Indeed, some scholars have contended that there is a relationship between pornography and the abuse of women in and after exiting intimate partner relationships (DeKeseredy 2015; see also Bergen and Bogle 2000; DeKeseredy and Corsianos 2016; DeKeseredy and Schwartz 2009). DeKeseredy and Schwartz (2016: 5) maintain that ‘it also buttresses social patriarchy and helps create an environment that normalizes hurtful sexuality, racism, and even seeking revenge

Spacelessness, spatiality and IPV   59

on female ex-­partners’. Technology has accelerated access to pornography and this may be exacerbating the normalisation of abuse. Kee (2006: 15) remarks that ‘initial research indicates that violence features more strongly’ in online than offline pornography. The influence and impact of technology is significant, yet place and space cannot be forgotten. Scholars have suggested that the consumption of pornography is higher in rural areas and also that, fuelled by new information technologies, rural women, in particular, are depicted in ‘degrading, highly sexualised’ ways in horror films and pornography. These representations are ‘normalised’ and ‘mainstreamed’, and ‘contribute to the horrification/pornification of rural culture, and by doing so, mask the real issues about crime, violence, and gender relations in the rural context’ (DeKeseredy et al. 2013; see also DeKeseredy and Hall-­Sanchez 2016). Both within and outside rural locations, rural violence can thus be constructed in ways that affect the enactment and normalisation of such violence.

Boundaries, barriers, risk and spatiality Victim/survivors residing in regional, rural and remote places face a host of challenges that shape their experience of and response to violence. Those who are geographically isolated may not have easy access to medical, formal or informal channels of assistance (Gallup-­Black 2005; Wendt 2009). The further their home base is from a metropolitan area, the greater the likelihood that public transport networks (where functioning) will be limited and private transport (taxis, app-­ based car services and hire vehicles) expensive or unavailable (Hogg and Carrington 2006; George and Harris 2014). It is not uncommon for abusers to control access to vehicles, telephones and, we could assume, other technological media, affecting women’s ability to physically leave a location. Where victim/survivors can access technology, it can be a powerful channel to access support and thereby to overcome physical and social isolation (Carrington et al. 2013; Harris 2016). In rural areas, as a consequence of complicated financial arrangements associated with family businesses (like farms), and, because there are fewer educational and employment opportunities than in metropolitan areas, limited finances often pose a barrier to help-­seeking. Access to legal advocacy can be further restricted when perpetrators intentionally cause conflicts of interest by accessing all legal services in an area (George and Harris 2014; Kyle, Coverdale and Powers 2014; WESNET 2000). In seeking to enhance access to advocacy for women, agencies ‘have shown initiative and ingenuity’ in using technology (such as Skype) to connect rural and regional victim/survivors with family violence workers and lawyers located in metropolitan places (Harris 2016: 83; see also Women’s Legal Service Victoria 2015). Unfortunately, such enterprises can be limited by resources, worker training, operational catchment areas and the ‘digital divide’, as, beyond the cityscape, levels of internet and ICT access, ability to utilise and affordability are lower in rural than metropolitan locations (Curtin 2001; Rooksby, Weckert and Lucas 2007).

60   Bridget Harris

In examining the risk victim/survivors face, spatiality – representing the inextricably bonded notions of place, space and spaceless – needs to be recognised. Distance and exclusion from adequate healthcare can result in what would be non-­fatal assaults in urban areas becoming fatalities in rural zones (Websdale 1998). This danger is exacerbated when perpetrators control access to technologies and subsequently, to first responders. There has been little research on intimate partner homicide in rural locations (DeKeseredy et al. 2016; Ellis and DeKeseredy 1997). Yet, Gallup-­Black’s (2005) assessment of American data indicates that it is higher than in non-­rural locations, and Websdale and Johnson (1995, cited in Websdale 1998) emphasise that rural American women face higher levels of torture and shooting than do urban women. Risk of homicide is also elevated by high levels of gun ownership and homemade weapons in rural locations (Harris 2016; Maume et al. 2014; Shuman et al. 2008). Fatal violence may not only be explained by residence in certain geographies (places), but also by the occupation of certain spaces. Gallup-­Black (2005: 151–152) proposes that the ‘close-­knit’ ‘nature of interpersonal communities’ in rural locations can restrict help-­seeking and thereby ‘increase the likelihood of family and intimate partner murder’. Likewise, Websdale (1998: 24) cautions that there is a high reliance on ‘traditional’ gender roles in rural locations, such that ‘rural battered women may be more prone to extreme violence’. Moreover, he claims that ‘rural culture’ can promote an ‘acceptance of firearms for hunting and self-­protection’, which ‘may include a code among certain men that accepts the casual use of firearms to intimidate wives and intimate partners’ (10). In this vein, Hall-­Sanchez (2014) observes a link between rural hunting culture and violence against women, which she associates with male peer-­support structures (see DeKeseredy et al. 2016; George and Harris 2014). It is imperative that peer­support networks are assessed with regard to both space and spacelessness, considering the connections between rurality, perpetrator networks and technology. In Landscapes of Violence, we found that criminal justice agents tended to view technology-­facilitated violence as separate from and more minor than other forms of abuse and traditional stalking (George and Harris 2014). Moreover, many women believed that police and magistrates were reluctant to recognise or regulate spaceless violence and consequently, felt that their safety was not prioritised. Katherine lamented, ‘I had all the text messages to prove it [the threats he made], the abusive ones where he said he wanted to kill me and stuff like that, [and] they still didn’t listen’ (George and Harris 2014: 151, 163). Perpetrator breaches of intervention orders via technology were said to be ‘frequent’ yet generally dismissed; however, ‘[m]ultiple and persistent breaches, even those that may at first appear “low level”, such as text messages, may be indicators of increased risk’ (Dwyer and Miller 2014: part 1, 50). Perpetrators who engage in stalking are more likely to breach orders, and, given the link between stalking (especially of intimate partners) and homicide and filicide,

Spacelessness, spatiality and IPV   61

such violations should be regarded as indicators of danger (Dimond, Fiesler and Bruckman 2011; Logan and Cole 2007; Mason and Magnate 2012; McFarlane et al. 1999; Harris and Woodlock forthcoming). Criminal justice agents frequently encouraged victim/survivors in Landscape of Violence to disengage from technology or, to avoid violence, women elected to do so. However, without access to technologies, their avenues to seek assistance and support could be jeopardised, which extended women’s perceptions of their geographic and social isolation and potentially exacerbated their vulnerability (George and Harris 2014). In any event, reducing one’s use of devices and ICT does not guarantee safety, as perpetrators who are exhibiting obsessive tendencies and monitoring victim/survivors are unlikely to cease their behaviour, and instead will use alternative channels (such as traditional stalking) which may increase the risk of physical violence (George and Harris 2014).

A new avenue – spaceless justice administration State efforts to respond to spaceless violence can be problematic, but law enforcement agencies continue to review and enhance policy and practice in this arena. Furthermore, police and court workers have expressed interest in how technology can be a tool to combat and regulate IPV. Justice institutions have long utilised technology in crime prevention, prosecution and punishment processes and recently, spaceless justice administration has centred on the use of police body-­worn cameras. Commentators have considered whether these mechanisms could reduce police misconduct, enhance accountability and transparency, improve confidence in justice structures and perceptions of procedural legitimacy, enhance productivity and operations, and impact police and citizen behaviours (Gannoni et al. 2017; Harvard Law Review 2015; White 2014). Few initiatives have exclusively been applied to IPV, but the allure of such technology has found purchase in Australia. Pioneering in the state of New South Wales (NSW) in 2015, following legislative reforms, Domestic Violence Evidence in Chief (DVEIC) allowed for statements filmed at a police call-­out to, at least in theory, stand as a victim/survivor’s evidence in court. Supported by the recommendations of path-­breaking inquiries – Victoria’s Royal Commission into Family Violence (RCFV – 2016) and Queensland’s Not Now, Not Ever inquiry (2015) – similar programmes have been implemented throughout the country. Proponents predicted that, as rates of guilty pleas rose, court efficiency would increase, police and victim/survivor resource expenditure would decrease, prosecution and conviction rates would rise, and assault and recidivism rates would decrease. Difficulties in securing oral testimony from victims/survivors and in victim/survivors remembering details, combating women’s reluctance to proceed or pressures from perpetrators to alter or recant statements, and the secondary trauma experienced by women engaging in formal criminal justice processes were identified as issues that body-­worn camera evidence might serve to overcome (NSW Legislative Assembly 12

62   Bridget Harris

November 2014). Technology, then, could potentially transform victim/survivor experiences of formally responding to violence. There has been relatively little review of police use of body-­worn cameras more broadly or in relation to IPV application specifically. This is alarming given how rapidly the expansion of this technology is occurring globally (Gannoni et al. 2017). Evaluations conducted in the United States (Arizona – Katz et al. 2014) found that the likelihood of domestic violence cases being initiated and resulting in charges and a guilty plea or verdict was higher in cases where body-­worn camera evidence was utilised, but no significant changes in sentence length ensued. Reviews from the United Kingdom (UK) have been mixed. The Police and Crime Standard Directorate (2007) remarked that, in Plymouth, evidentiary quality, and police productivity, professional development and accountability had increased, as had the number of sanction detections for violent crimes. In contrast, Drover and Ariel (2015), assessing the application of body-­worn cameras in Wolverhampton, like Owens, Mann and Mckenna (2014) in their research in Essex, identified no conclusive proof that the evidential case of domestic violence matters had been improved. Echoing these reports, the only publicly available review of the DVEIC has found no discernible impact on the probability of guilty pleas or convictions associated with the use of video footage (Yeong and Poynton 2017). The promise of body-­worn camera evidence, then, to facilitate prosecution of IPV, is questionable, but there are other (positive and negative) impacts which need to be examined. It is not only effectiveness in terms of case outcomes that should be critically assessed. NSW Police (2015) proclaimed that the DVEIC would bring victim/ survivors’ ‘reality into the courtroom’. Likewise, Goodall (2007: 8) maintains that body-­worn camera evidence provides ‘an exact record of the demeanour and language of the accused, the disturbance throughout the scene and the emotional effect on the victim’. Drover and Ariel (2015: 81) agree that the camera ‘captures the scene [of domestic violence], injuries, and behavior of the parties first hand’. Yet, while footage provides the illusion of objectivity, it represents a particular moment in time and is subject to interpretation and ‘camera view bias’ (Taylor 2016). Thus, while video testimony may provide insight into the event and impact of the violence, the permeation and context of coercive control cannot arguably be captured. Stark (2007) emphasises that to understand experiences of domestic violence we need to move beyond an incident model. Body-­worn camera evidence captures only the aftermath of a single incident: a crisis point that sparks police intercession. The use of visual technology can result in a focus on only those harms that can be immediately ‘seen’, rendering emotional, psychological, financial and certainly technology-­facilitated violence invisible. The criminal justice system does not, Stanko (1990) argues, recognise the dynamics of violence – that, for some, the experience of violence does not represent a sudden disruption to their lives, but is part of their everyday life. Police and judicial officers may not fully appreciate how coercive control, trauma and responses to

Spacelessness, spatiality and IPV   63

violence manifest, and may struggle to read women who do not act or react in a particular way (Dunn 2010). As Douglas and Goodmark (2015: n.p.) explain: ‘[b]y the time police turn up to a call-­out perpetrators may appear calm and rational, while their terrified and frustrated victims appear irrational, crazy or angry – far from the “perfect victim” that police, prosecutors and courts expect to see’. Worryingly, then, recordings ‘may present obstacles to victims’ later claims for protection orders and diminish their credibility in court hearings’. Survivors may be unable to secure orders and, when violent resistance is captured, video may be used in ‘potentially criminalising the victim’, such as through the issuing of a cross-­application or mutual order (RCFV 2016: volume 3, 81). Thus, secondary trauma experienced by survivors could actually be exacerbated instead of alleviated by the presence of body-­worn cameras. Certainly, there is potential for technology to reduce ‘the impact of the justice process on victims’, especially where it features as evidence in chief, removing the need for women to attend court (RCFV 2016: 196). The degree to which victim/survivors can consent to the initial collection of such evidence varies; in some jurisdictions officers must gain permission before commencing recordings but this is not required in all locations. Even where consent is necessary, once the statement is obtained it can be (at the prosecutor’s discretion) used with or without the victim/survivor’s agreement. Women may thus be revictimised if they do not freely elect to make a video statement or are pressured to do so or to proceed with a matter. Evidently, some officers see body-­worn camera evidence as a tool to proceed in domestic violence matters, with or without victim/survivor support (Katz et al. 2014). Indeed, Goodall (2007: 8) claims that, in the UK, footage has ‘assisted greatly in supporting reluctant witnesses through the court process’. Admittedly, this could be regarded as a positive step, if it is believed that a person does want to proceed with the matter but not provide oral testimony, fearing retribution from the perpetrator, or if it is in the best interests of the person’s safety to proceed (although this may be subject to debate). In such instances, a victim/ survivor can be declared to be a hostile or unfavourable witness if their testimony is recanted or seen to contradict that initially provided to police. Douglas and Goodmark (2015: n.p.) warn that potentially, then, in ‘pro-­prosecution’ cultures, victim/survivors ‘might even be prosecuted for perjury’. Ideally, spaceless justice administration will enhance access to justice, bolster the safety and security of victim/survivors and raise their confidence and comfort levels in formally responding to IPV. Yet, to ensure that technology is not causing further harm, initiatives cannot be employed without critique, evaluation or reflection. There are other (perhaps less controversial) avenues for justice use of technology, such as ‘to administer justice from a distance, and thus service rural and remote communities’ (Cavill and Miller 1997: 9–10). In the court setting, while Australia is a world leader in court-­based video-­link technology, this mechanism is drastically under-­utilised (Victorian Parliamentary Law Reform Committee

64   Bridget Harris

cited in Wallace 2008: 2). The public nature of courts, especially in small towns, can be confronting, and court design can pose safety risks where there is sparse security, shared waiting areas and single entry/exit points (Harris and George 2015; Harris et al. 2014). Victim/survivors have been seriously and fatally harmed after leaving rural courts and, rather chillingly, women have noted that their former partners are aware of mobile phone ‘drop-­out’ zones between their residences and the court, where they were vulnerable to attack (George and Harris 2014). Spaceless testimony might lessen these harms and the dangers posed by distance.

Conclusion Spacelessness is changing the way violence is enacted and, in the interests of protecting and empowering women and preventing abuse and stalking, must be better understood. Coercive control has never been confined to ‘private’ domains and it is imperative that the spatially diffuse nature of perpetration is recognised. Technology-­facilitated violence impacts on women’s health, wellbeing and sense of security, with particular consequences for those residing in regional, rural and remote locations. Adopting a spatial lens is therefore imperative in gaining insight into experiences of and responses to IPV and in recognising and redressing risk. This is a field which warrants further study. Technology brings not only new dangers, but also new opportunities and pathways for assistance, advocacy and justice administration, including beyond the cityscape, and is thus a critical subject of inquiry.

Note 1 The study conducted with George in 2014, on violence in regional and rural experiences of ‘family violence’ is hereafter Landscapes of Violence

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Spacelessness, spatiality and IPV   67 Fraser, C., Olsen, E., Lee, K., Southworth, C. and Tucker, S. (2010) ‘The new age of stalking: technological implications for stalking’, Juvenile and Family Court Journal, 61(4): 39–55. Gallup-­Black, A. (2005) ‘Twenty years of rural and urban trends in family and intimate partner homicide does place matter?’, Homicide Studies, 9(2): 149–173. Gannoni, A., Willis, M., Taylor, E. and Lee, M. (2017) Surveillance Technologies and Crime Control: Understanding Police Detainees’ Perspectives on Police Body-­worn Video (BWV) and CCTV Cameras, Canberra: Australian Institute of Criminology. George, A. and Harris, B. (2014) Landscapes of Violence: Women Surviving Family Violence in Regional and Rural Victoria, Geelong: Deakin University. Goodall, M. (2007) Guidance for the Police Use of Body-­worn Video Devices, London: Home Office. Hall-­Sanchez, A. K. (2014) ‘Male peer support, hunting and separation/divorce sexual assault in rural Ohio’, Critical Criminology, 22(10): 495–510. Hand, T., Chung, D. and Peters, M. (2009) The Use of Information and Communication Technologies to Coerce and Control in Domestic Violence and Following Separation, Sydney: Australian Domestic & Family Violence Clearinghouse. Harris, B. (2016) ‘Violent landscapes: a spatial study of family violence’, in A. Harkness, B. Harris and D. Baker (eds) Locating Crime in Context and Place: Perspectives on Regional, Rural and Remote Australia (pp. 70–84), Sydney: Federation Press. Harris, B. and George, A. (2015) Submission made for the Centre for Rural Regional Law and Justice, Deakin University to the Royal Commission into Family Violence, Victoria, Mel­ bourne. Available from: www.rcfv.com.au/Submission-­Review (accessed 26 July 2015). Harris, B. and Woodlock, D. (forthcoming) ‘Spaceless violence: technology and domestic coercive control’, unpublished article. Harvard Law Review. (2015) ‘Considering police body cameras’, Harvard Law Review 128(6): 1794–1817. Hogg, R. and Carrington, K. (2006) Policing the Rural Crisis, Sydney: Federation Press. Internet Governance Forum (2015) Best Practice Forum (BPF ) on Online Abuse and Gender-­based Violence Against Women. Available from: www.intgovforum.org/cms/ documents/best-­practice-forums/623-bpf-­online-abuse-­and-gbv-­against-women/file (accessed 4 August 2017). Katz, C. M., Choate, D. E., Ready, J. R. and Nuňo, L. (2014) Evaluating the Impact of Officer Worn Body Cameras in the Phoenix Police Department, Phoenix: Center for Violence Prevention & Community Safety, Arizona State University. Kee, J. S. M. (2006) Cultivating Violence through Technology? Exploring the Connections between Information and Communication Technologies (ICT) and Violence against Women, Association for Progressive Communications Women’s Networking Support Programme. Available from: www.genderit.org/sites/default/upload/VAW_ICT_EN.pdf. Kings-­Ries, A. (2011) ‘Teens, technology, and cyberstalking: the domestic violence wave of the future?’, Texas Journal of Women and the Law, 20(2): 131–164. Kyle, L., Coverdale, R. and Powers, T. (2014) Conflict of Interest in Victorian Rural and Regional Legal Practice, Geelong: Deakin University. Logan, T. K. and Cole, J. (2007) ‘The impact of partner stalking on mental health and protective order outcomes over time’, Violence and Victims, 22(5): 546–562. Lucero, J. L., Weisz, A. N., Smith-­Darden, J. and Lucero, S. M. (2014) ‘Exploring gender differences: socially interactive technology use/abuse among dating teens’, Journal of Women and Social Work, 29(4): 478–491.

68   Bridget Harris Lumsden, K. and Morgan, H. (2017) ‘Media framing of trolling and online abuse: silencing strategies, symbolic violence, and victim blaming’, Feminist Media Studies, 17(6): 926–940. Lyndon, A., Bonds-­Raacke, J. and Cratty, A. D. (2011) ‘College students’ Facebook stalking of ex-­partners’, Cyberpsychology, Behavior and Social Networking, 14(12): 711–716. Marganski, A. and Melander, L. (2015) ‘Intimate partner violence victimisation in the cyber and real world: examining the extent of cyber aggression experiences and its association with in-­person dating violence’, Journal of Interpersonal Violence, 50: 1–25. Mason, C. and Magnate, S. (2012) ‘Surveillance studies and violence against women’, Surveillance & Society, 10(2): 105–118. Maume, M., Lanier, C., Hossfeld, L. H. and Webmann, K. (2014) ‘Social isolation and weapon use in intimate partner violence incidents in rural areas’, International Journal of Rural Criminology, 2(2): 244–267. McFarlane, J. M., Campbell, J. C., Wilt, S., Sachs, C. J., Ulrich, Y. and Xu, X. (1999) ‘Stalking and intimate partner femicide’, Homicide Studies, 3(4): 300–316. Melander, L. A. (2010) ‘College students’ perceptions of intimate partner cyber harassment’, Cyberpsychology, Behavior, and Social Networking, 13(3): 263–268. Muise, A., Christofies, E. and Desmarais, S. (2009) ‘More information than you ever wanted: does Facebook bring out the green-­eyed monster of jealousy?’, CyberPsychology & Behavior, 12(4): 441–444. NSW Legislative Assembly. (12 November 2014) Criminal Procedure Amendment (Domestic Violence Complaints) Bill 2014: Second Reading Speech Debate, NSW: NSW Legislative Assembly. NSW Police (2015) Domestic Violence Evidence in Chief, NSW: NSW Police. Owens, C., Mann, D. and Mckenna, R. (2014) The Essex Body Worn Video Trial: The Impact of Body Worn Video on Criminal Justice Outcomes of Domestic Abuse Incidents, Essex: College of Policing. Paris, L. (2016) ‘Fifty Shades of fandom: the intergenerational permeability of Twilight fan culture’, Feminist Media Studies, 16(4): 678–692. Police and Crime Standard Directorate (2007) Guidance for the Police Use of Body-­worn Video Devices, United Kingdom: Home Office. Reed, L. A., Tolman, R. M. and Ward, L. M. (2016) ‘Snooping and sexting: digital media as a context for dating aggression and abuse among college students’, Violence Against Women, 22(13): 1556–1576. Reed, L. A., Tolman, R. M., Ward, L. M. and Safyer, P. (2016) ‘Keeping tabs: attachment anxiety and electronic intrusion in high school dating relationships’, Computers in Human Behavior, 58: 259–268. Rooksby, E., Weckert, J. and Lucas, R. (2007) ‘The digital divide in Australia: is rural Australia losing out?’, in E. Rooksby and J. Weckert (eds) Information Technology and Social Justice, Hershey: Information Science Publishing. Salter, M. (2017) Crime, Justice and Social Media, London: Routledge. Shuman, R. D., McCauley, J., Waltermaurer, E., Roche, W.  P., Hollis, H., Kilgannon Gibbona, A., Dever, A., Jones, S. and McNutt, L. A. (2008) ‘Understanding intimate partner violence against women in the rural south’, Violence and Victims, 23(3): 390–405. Southworth, C., Dawson, S., Fraser, C. and Tucker, S. (2005) ‘A high-­tech twist on abuse: Technology, intimate partner stalking, and advocacy’, Violence Against

Spacelessness, spatiality and IPV   69 Women Online Resources. Available from: http://nnedv.org/downloads/SafetyNet/ NNEDV_HighTechTwist_PaperAndApxA_English08.pdf (accessed 4 August 2017). Special Taskforce on Domestic and Family Violence in Queensland. (2015) Not Now, Not Ever: Putting an End to Domestic Violence in Queensland, Brisbane: Brisbane Department of Communities, Child Safety and Disability Services. Stanko, E. (1990) Everyday Violence: How Women and Men Experience Sexual and Physical Danger, London: Pandora. Stark, E. (2007) Coercive Control: The Entrapment of Women in Personal Life, New York: Oxford University Press. Taylor, E. (2016) ‘Lights, camera, redaction … Police body-­worn cameras; autonomy, discretion and accountability’, Surveillance and Society 14(1): 128–132. Taylor, J. (2014) ‘Romance and the female gaze obscuring gendered violence in the Twi­ light saga’, Feminist Media Studies, 14(3): 388–402. Temple, J. R., Choi, H. J., Brem, M., Wolford-­Clevenger, C., Stuart, G. L., Peskin, M. F. and Elmquist, J. (2016) ‘The temporal association between traditional and cyber dating abuse among adolescents’, Journal of Youth and Adolescents, 45(2): 340–349. United Nations Broadband Commission Working Group on Gender (2015) Cyber Viol­ ence against Women and Girls: A Worldwide Wake-­up Call United Nations. Available from: www.broadbandcommission.org/Documents/reports/bb-­wg-gender-­discussionpaper 2015-executive-­summary.pdf (accessed 4 August 2017). Utz, S. and Beukeboom, C. J. (2011) ‘The role of social networking sites in romantic relationships: Effects on jealousy and relationship happiness’, Journal of Computer-­ mediated Communication, 16(4): 511–527. van Reenen, D. (2014) ‘Is this really what women want? An analysis of Fifty Shades of Grey and modern feminist thought’, South African Journal of Philosophy, 33(2): 223–233. Victorian Royal Commission into Family Violence [RCFV] (2016) Report and Recom­ mendations, Victoria: Victoria Parliament.  Wallace, A. (2008) ‘Virtual justice in the bush: the use of court technology in remote and regional Australia’, Journal of Law, Information and Science 19(1): 1–21. Websdale, N. (1998) Rural Woman Battering and the Justice System: An Ethnography, Thousand Oaks: Sage Publications. Wendt, S. (2009) Domestic Violence in Rural Australia, Sydney: Federation Press. WESNET, (2000) Domestic Violence in Regional Australia: A Literature Review, Australia: WESNET. West Coast LEAF (2014) #CyberMisogyny: Using and Strengthening Canadian Legal Responses to Gendered Hate and Harassment Online, Vancouver: West Coast LEAF. White, M. (2014). Police Officer Body-­worn Cameras: Assessing the Evidence’. Washington DC: Office of Community Oriented Policing Services. Wick, S. E., Nagoshi, C., Basham, R. and Jordan, C. (2017) ‘Patterns of cyber harassment and perpetration among college students in the United States: a test of routine activities theory’, International Journal of Cyber Criminology, 11(1): 24–38. Wolford-­Clevenger, C., Zapor, H., Brasfield, H., Febres, J., Elmquist, J.  A., Brem, M., Shorey, R. C. and Stuart, G. L. (2016) ‘An examination of the Partner Cyber Abuse Questionnaire in a college student sample’, Psychology of Violence, 6(1): 156–162. Women’s Legal Service Victoria. (2015) Link Virtual Outreach Project Evaluation, Melbourne: Women’s Legal Service Victoria. Woodlock, D. (2013) Technology-­facilitated Stalking: Findings and Recommendations from the SmartSafe Project, Melbourne: Domestic Violence Resources Centre Victoria.

70   Bridget Harris Woodlock, D. (2017) ‘The abuse of technology in domestic violence and stalking’, Viol­ ence Against Women, 23(5): 584–602. Ybarra, M., Price-­Feeney, M., Lenhart, A. and Zickuhr, K, (2017) Intimate Partner Digital Abuse, San Clemente: Center For Innovative Public Health Research. Yeong, S. and Poynton, S. (2017) ‘Evaluation of the 2015 Domestic Violence Evidence-­ in-Chief (DVEC) reforms’, Crime and Justice Bulletin: NSW Bureau of Crime Statistics and Research, 206: 1–16.

Chapter 4

Challenging risk The production of knowledge on gendered violence in South Africa Floretta Boonzaier

Introduction This chapter engages conceptually with the notion of risk as it relates to research and theorising on gendered violence in South Africa. It reviews empirical research on intimate partner violence (IPV), sexual violence and other forms of gendered violence to show how the knowledge produced works to construct particular women as being ‘at greater risk’ of violence and particular men as being at greater risk of perpetration. The effects of the discursive resources utilised in academic discourse on gendered violence in South Africa are illuminated to demonstrate how they perpetuate particular racialised, classed and gendered stereotypes. I engage with the implications of these stigmatising discourses by illustrating how they operate in media narratives on gender-­based violence more broadly.

Wave 1: apartheid legacies and challenges In the first decade after the fall of apartheid in South Africa, when a new democracy was attempting to come to terms with itself, much research on gender-­based violence (GBV)1 interpreted the high levels of violence against women in relation to the aftermath of apartheid. The high levels of violence against women (although no official statistics existed at the time) were interpreted in relation to the violence experienced both during apartheid and immediately before its demise. There was recognition that apartheid left a legacy of militarisation, repression, interpersonal violence, and an excess of weapons in its wake (Wood 2005). South African society under apartheid was a violent one and psychological and physical violence was embedded in the laws and practices of the system. This structure of violence and oppression was interpreted as leading to reactive violence, to which the state responded with its own violence to repress the resistance, creating what came to be understood as ‘a culture of violence’ – a situation in which violence came to be accepted as the ‘norm’ (Segal and Labe 1990). In addition to the above explanation, the patriarchal structure of South African society was cited to explain why much of the violence was directed at women specifically. Women’s subordinate position in the social hierarchy was

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magnified in the ‘private sphere’ of the home. As an example, all South African women who were married before 1985 without prenuptial contracts were subject to ‘marital power’, whereby a woman was understood to be a man’s ‘property’ (Segal and Labe 1990). Additionally, marital rape was assumed to be a man’s ‘right’ and there was no legal recourse for women who were raped by their husbands, thus maintaining the construction of rape in marriage as a ‘private matter’. As another example, the ways in which the apartheid government allocated housing (that is, prioritising men with families) worked to position women in subservient positions and made leaving abusive relationships difficult. In the decade after democracy was established, apartheid and patriarchy continued to be cited as major contributors to of domestic violence. Apartheid and the patriarchal structure of gender were said to ‘lay the pre-­conditions of woman abuse’ (Segal and Labe 1990: 261). The notion of apartheid being to blame for the high levels of IPV in South Africa was supported by research carried out in a township called Mitchell’s Plain (Lawrence 1984). Mitchell’s Plain was an area to which Coloured2 people were forced to move under the apartheid Group Areas Act of 1950. The research conducted by Lawrence provides one example of a situation that was likely created in many similar areas affected by the Group Areas Act, across the country. Eight years after the creation of the township, Mitchell’s Plain residents were found to be living in extreme poverty. Lawrence’s research lists problems such as lack of police and community cohesiveness, isolation, poor educational opportunities, high unemployment rates, housing shortages, high rates of crime, a high cost of living, the existence of shebeens,3 the lack of childcare facilities, and alcoholism. These issues were seen as affecting intimate relationships and exacerbating relationship problems such as men disapproving of their partners working, arguments over money, men’s jealousy, and general high levels of alcohol and drug use. Apartheid began its fall in 1990 and the ban on political organisations was lifted. As a result of mobilisation by women’s organisations, violence against women has emerged as an important issue since the official political change in South Africa in 1994 (Vetten 2000). The Family and Marriage Association of South Africa, established in 1990, was the first programme for perpetrators of  IPV to be established in the country (Boonzaier 2008). The high levels of unemployment, poverty and deprivation left by the apartheid system were understood to produce a situation of insecurity and powerlessness (Vogelman and Lewis 1993). From this understanding began to emerge a narrative in which men’s violence came to be seen as a response to ‘emasculation’, as displaced aggression and as a reassertion of masculinity (Simpson and Kraak 1998) – a narrative that has since recurred in the literature on GBV in South Africa. In the context of the introduction of South Africa’s highly acclaimed progressive constitution and its recognition of the rights of women and other marginalised groups, men’s violence has come to be understood not simply as a response to the aftermath of apartheid but also as a result of their ‘disempowerment’ in the face of women’s newly found ‘empowerment’ (Morrell 2001).

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We see the emergence of the above ways of thinking about GBV in later research, conducted towards the end of the first decade after democracy was introduced. Abrahams et al. (2004), for example, found that South African men have beliefs related to their entitlement to sex and hierarchical gender positions, and define male success in terms of the control over women. They understand male violence as emerging, in part, when men’s dominant positions are challenged. Out of this recognition, the research trajectory shifted towards focusing on masculinity and its implication in violence, considering the importance to men of sexual relationships, multiple partners and economic provision, but also how ideas about ‘successful masculinity’ may be constrained by poverty (Boonzaier 2005). At the time, however, we also saw some challenges, albeit limited in number, to ‘blaming’ disempowered groups for their own disempowerment. This was reflected in the caution by Bennett (2003: 27) that ‘the people who have struggled … for changes in women’s access to autonomy, to political authority, to economic rights are now to be held accountable for their own rape and assault’.

Wave 2: IPV as a public health issue In the second decade after democracy, we see a shift in focus within the research on gendered violence, and IPV specifically, although narratives on the legacy of apartheid remain important. More recently, South African research on IPV has been approached primarily through a public health lens. This framing has resulted in the research focusing chiefly on IPV and HIV, IPV and pregnancy, and IPV and mental health, consistent with trends in global research (Wang et al. 2015). These shifting research imperatives are likely a result of global health research funding initiatives that have prioritised research on HIV. This body of work has also closely attended to the notion of ‘risk’, attempting to address questions about who is most at risk of perpetrating or experiencing violence. ‘At risk’ of victimisation In the now long history of research exploring the links between HIV and GBV, research has confirmed the idea that IPV increases the risk for HIV (Jewkes et al. 2010) and also that revealing one’s HIV status places one at risk of IPV (Jewkes, Levin and Penn-­Kekana 2003). The link between IPV and HIV is understood to occur as a result of ‘risky’ sexual practices, through the inability of women to negotiate safer sex in the context of a violent relationship and the ever-­present threat of violence. Within the past ten years, pregnant women who experience IPV have emerged as a special interest group, globally. This has been the case because of the recognition that IPV during pregnancy can have harmful effects on maternal and infant health (Devries et al. 2010). These effects have been understood to be compounded when IPV and HIV infection are combined (Matseke et al.

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2016). In the context of global trends, the rates of IPV during pregnancy in Africa appear to be high. A systematic review of quantitative studies on pregnant women conducted in Africa and published between 2000 and 2010 found an overall IPV prevalence of 15.23 per cent (Shamu et al. 2011). Research from South Africa estimates that 25–35 per cent of pregnant women have been exposed to physical or sexual violence from a partner within the past 12 months (Groves et al. 2012; Hoque, Hoque and Kader 2009). It appears that HIV-­ positive pregnant women are at an even greater risk of experiencing IPV. In a study with 673 HIV-­positive pregnant women, 56.3 per cent reported having survived either physical or psychological IPV, and 19.6 per cent reported physical IPV (Matseke et al. 2016). The risk factors for experiencing IPV during pregnancy have also been explored and include being HIV-­positive, a history of violence in the relationship, having a partner who abuses alcohol, risky sexual behaviours, low socioeconomic status and young age (Shamu et al. 2011). The associations between IPV and mental health have also been an area of concern for South African researchers. In a recent study with 511 women from Gauteng, 50 per cent had experienced IPV in their lifetime (Machisa, Christofides and Jewkes 2017). Twenty-­three per cent of the sample had depressive symptoms, 14 per cent binge drank and 11.6 per cent had post-­traumatic stress disorder (PTSD) symptoms. Another study found that women who have been abused by a partner have a higher frequency of consumption of alcohol (Pitpitan et al. 2012). Overall, the risk profile for abuse victimisation is captured in the results of a recent study commissioned by UNICEF, using structural equation modelling, into the determinants of violence against women and children in South Africa (Mathews et al. 2016). The study found the following risks for violence victimisation (all types of IPV as well as non-­partner sexual violence): being from a poorer background, having a lower level of education, suffering abuse as a child, being economically dependent on a partner, abusing alcohol, having a partner who abuses alcohol and perceived infidelity by a male partner. In this ‘risk profile’ we see the issues raised from both waves of research on GBV and IPV in South Africa. ‘At risk’ of perpetration It has been suggested that South African men who perpetrate IPV are more likely to have multiple, concurrent female partners; use condoms inconsistently; have sexually transmitted infections (STI) symptoms; and engage in transactional sex (Pitpitan et al. 2012; Townsend et al. 2011). All of these have also been described as risk factors for HIV infection and thus women who are on the receiving end of violence in these intimate relationships have been considered to be more vulnerable to HIV infection. Jewkes et al. (2011) reported similar findings as they identified a correlation between the perpetration of physical IPV and HIV infection in young South

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African men, after accommodating other risk factors. It is also suggested that the relationship between HIV and IPV is mediated by alcohol abuse as lowered inhibitions from intoxication are linked to risky sexual behaviour and greater aggression in both men and women (Pitpitan et al. 2012). The results from a study with men in Cape Town found that IPV perpetration was significantly linked to having a casual sexual partner as well as to alcohol dependence (Mthembu et al. 2016). Consistent with international findings, substance abuse has been found to be linked to IPV perpetration, particularly the abuse of methamphetamines and alcohol (Watt et al. 2016). The link between IPV and alcohol misuse is particularly robust as South African men who drink heavily and have large numbers of partners have been found to be more likely to be violent towards or rape an intimate partner (Dunkle et al. 2006). The relationship between alcohol abuse and IPV is also supported by the research that indicates that violent behaviour appears to decline as drinking lessens (Hatcher et al. 2014). Other research has looked at how a history of abuse can act as a risk factor for IPV perpetration. Machisa, Christofides and Jewkes (2017) found that, of the 416 men in their sample, 88 per cent had been abused during childhood, 55 per cent had been neglected, 63 per cent had been emotionally abused and 20 per cent had been sexually abused at least once. There were also high rates of mental health problems, as 24 per cent of the men had PTSD symptoms, 24 per cent had depressive symptoms and 36 per cent abused alcohol. In terms of IPV, 22 per cent had one incident of IPV perpetration and 40 per cent had repeatedly engaged in perpetration. PTSD, childhood trauma and other traumas increased the risk of repeated IPV perpetration. Regression modelling revealed that there was a strong link between a history of childhood trauma and IPV perpetration and that this relationship was mediated by mental health problems (Machisa, Christofides and Jewkes 2017). Likewise, Gupta et al. (2012) identified a significant association between men who had experienced abuse in the form of human rights violations or witnessed severe victimisation of friends/ family during apartheid and the perpetration of IPV. Again, the overall risk profile for IPV perpetration by men is summarised in the UNICEF research mentioned earlier (Mathews et al. 2016). The risks for violence perpetration (both IPV and non-­partner sexual violence) include: individual and household poverty, lower levels of educational attainment, abuse suffered as a child, higher traumatic experiences, greater control in relationships, personal beliefs about inequitable gender relationships, personal views on rape, alcohol abuse and having multiple concurrent sexual partners. Again, these determinants and the overall risk profile correspond to research emergent from both the first and second waves of theorising on GBV and IPV in South Africa.

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Challenging risk: the ideological effects of knowledge production on GBV Shefer (2016) raises a key challenge in her analysis of knowledge production on gender, power and heterosex by arguing that the scholarship in these areas in some ways reproduces the very gender stereotypes it is meant to challenge. She suggests that while particular areas of research that have proliferated in the global public health sphere may be interpreted as important opportunities, they may also come at a ‘price’, and thus it is important to unpack the ‘ideological, political and practical’ (215) effects of our research. It is in this light that this chapter ‘takes stock’ of the growing body of research on GBV and IPV in South Africa and reflects on its effects. Vulnerable women – ‘risky’ and ‘at risk’ Within the literature women are consistently spoken about in relation to ‘vulnerability’ and ‘risks’ for violence. The most frequent adjectives used to describe them are ‘at risk’ and ‘vulnerable’. Women are constructed as being constantly at risk for violence within multiple contexts. This vulnerability is particularly seen to be manifest in situations involving drug and alcohol use and casual sex. However, focusing on women’s consumption of alcohol in research on GBV (whether as a precursor or response to violence) suggests that it is some aspect of the woman’s behaviour that produces the violence. This suggestion feeds into longstanding discourses of victim-­blaming that manifest especially in relation to situations of sexual violence (O’Hara 2012). Critically reflexive research requires that we think carefully, not only about our research practices and the ways in which we engage with our participants, but also about the effect of the knowledges we produce – especially if this implicates groups of people who are already marginalised. Academic research has important implications for how an issue such as GBV is framed and interpreted. The findings of research on issues of contemporary relevance, such as violence, are frequently reported in the media. Academic discourse forms part of a picture that shapes not only public thinking on a topic but also media discourses. It is therefore important to examine whether and how the themes in academic research are taken up in media reporting on gendered and sexual violence. It is noteworthy that the same pattern of reporting gendered violence alongside observations about the victim’s consumption of alcohol or other substances can be detected in media discourse. Below, I provide examples drawn from an ongoing analysis of media discourse on GBV in South Africa. A clear pattern is detectable in the analysis of articles reporting on the rape of women. In most of these articles, reference is also made to the woman’s consumption of alcohol or drugs. For example, in 2013 The New Age covered a story of the ‘rape, murder and horrific mutilation’ of a woman in a township in the

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Western Cape province of South Africa. In describing the events leading up to the murder, the author explains that the woman had gone out that evening and that she ‘was drinking with friends when the suspects asked her to accompany them to fetch more money. Soyeka left with the pair as they were known to her’. The article suggests that shebeens were the main contributors to crime in the area, quoting a resident as saying, ‘women go to these shebeens and drink until late and end up victims of criminals’ (Phaliso 2013: 5). In another article from 2013, a woman who was raped and killed is described as having ‘struggled with a tik [methamphetamine] addiction’ (Kinnear 2013: 5). An article in the Herald newspaper entitled ‘Sex attacks up over holidays’ quotes a state prosecutor as saying: During the festive season we can easily say almost 70% of the reported rapes are related to alcohol and originated from bars, house parties and taverns. This includes women walking home by themselves or meeting a stranger at a bar or party. (Wilson 2014: 5) In these reports, adult women are constructed as having some degree of liability for their own abuse. In all of the quotes above it is evident how women are constructed as the active subject of the rape, as ‘going’ to shebeens or ‘walking’ home alone. The notion that women have to police their own movements as a result of men’s potential violence is not problematised in any of the articles. It is, of course, no coincidence that each of the authors chose to include details about the women drinking or using drugs in their articles about their rapes and murders. Constructing these women as using drugs or alcohol feeds into broader discourses of women being to some extent responsible for or looking for their own rape or abuse. Instead of highlighting male domination over women and holding men responsibe for their abuse of women, these articles serve to mask these issues and place responsibility in the hands of the women themselves. Talking about women’s drinking and consumption of drugs not only places the blame on them for their victimisation – it also constructs them as not appropriately feminine. Research amongst South African men has indicated that alcohol consumption is considered a male domain and, in the context of interpersonal relationships, violence is used by some men to police women’s drinking (Abrahams et al. 2006). The women whose gruesome experiences are outlined in these reports then somehow become probable victims, their treatment somehow justified, because they have transgressed expectations of femininity. Therefore, the representation that emerges from academic research that explores GBV in the same context in which it asks about women’s consumption of alcohol and other substances concurs with media reporting that blames women for their own victimisation. Conversely, alcohol and drugs were often used as an explanation for men’s violent behaviour towards women. Many newspaper articles commented on

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men being drunk or on ‘tik’ at the time of their violent attacks. Mentioning the consumption of drugs and alcohol by men is used to remove some of men’s responsibility for their violence, in contrast to the depiction of women, where it is used to render them responsible for the abuse inflicted upon them – with all of these constructions having been found in other literature on the topic, both nationally and internationally (O’Hara 2012; van Niekerk 2015). In academic research there is much focus on the inter-­relationships between substance use, casual sex and violence. Collectively, the research suggests that women are ‘at risk’ when they are drunk or high, but that they are also ‘at risk’ when in the company of drunk or high men. This, then, presents inescapable risk scenarios for women. However, it is also known that a woman is more likely to be raped by a person known to her in her own home than by a stranger; and so the resulting construction is that women lead lives of inherent vulnerability, such that violence is almost inevitable. The way that women are described as being essentially ‘at risk’ is similar to the ways in which young people and lesbian, gay, bisexual, transgender, intersex and queer persons are represented in research (see Boonzaier and Kessi 2018; Shefer 2016). These constructions speak to a much larger, overarching discourse in which oppressed groups are reframed as the problem (‘the risk’) rather than the toxic and unequal contexts in which they exist (Kessi 2011). The constant emphasis on risk also links to hegemonic gendered discourses about women as powerless and helpless, thereby obscuring their more complicated ways of being in the world. Overall, the image of the ‘risk’ profile for women appears to suggest the inevitability and normalisation of violence in their lives and relationships. The narrative of inevitable risk has clear implications for women’s subjectivities and ways of being. Certainly, research has illustrated that the circulating scripts about ‘abused women’ are internalised and may be taken up by women in violent relationships and emerge in the ways in which they narrate their experiences and imagine the possibilities for change (Boonzaier 2014). The internalisation of this narrative of inevitable risk could mean that women in such contexts see their life paths as predictably leading to abuse and HIV infection. This allows for very narrow subject positions, limits ways of being and creates the idea that only certain types of people are vulnerable to violence. The discourse on the inevitable risks of womanhood and the normalisation of violence is also evident in the ways in which the issue of IPV is silenced in media reporting. Unless perpetrated by a person in authority or a celebrity, or unless they involve severe brutalisation resulting in death, overall, cases of IPV do not make it into the South African media. Of the few articles about IPV that were identified, the majority of the stories covered incidents where policemen were violent to their partners (see, for example, Masombuka 2013: 5). Many of these articles focused on the fact that policemen were committing crimes, rather than on the fact that IPV had occurred. In addition to the fact that a limited number of articles reporting on IPV could be found, in many of these articles the IPV is of secondary importance in

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the report. For instance, in an article in The Sowetan entitled ‘Cop abuse costs state millions’, the author focuses on how various women sued the minister of police for damages for a failure to protect them, instead of on the deeper issue of violence against women (Mabuza 2015: 6). Here, what is deemed significant about domestic violence is not that it is violence against women but that it has the potential to cost the state money. Another example of how the act of domestic violence becomes the secondary tale is seen in an article in The Star entitled ‘Cousin hopes slain cop’s hard work protecting vulnerable wasn’t in vain’. Molosankwe (2013: 7) reports on an incident where a policeman died after being called out for a ‘domestic dispute’ and then being shot by the suspect. The case of IPV is barely mentioned again and the article instead focuses on the death of the policeman. In the above reports, the pattern of IPV experienced by the woman remains little more than a contextualising feature. The media industry, driven by profit imperatives, is interested in telling new and unique stories with the aim of selling more papers. Unless it challenges normative thinking or is unusual in any way, the story of a woman who has experienced abuse at the hands of her partner is not necessarily considered to be newsworthy. A large proportion of media reports on GBV in South Africa focus on sexual violence against girl children (although discussed largely outside a discourse of patriarchy). This focus is justified because children are constructed as innocent and legitimate victims, worthy of sympathy and deserving of adult protection. When positioned against the silence of reporting on IPV against adult women, these articles reveal the ways in which victimhood is constructed. Adult women, by virtue of being adult and women, are seen as not worthy of being reported on, because the violence against them is normalised and expected. The silence on IPV also suggests that the issue is not worthy of attention – a situation that perpetuates a system in which IPV is legitimately constructed as a ‘private family issue’. Research in South Africa has shown that women calling on the police for protection in cases of IPV does not always result in the required outcome as the police frequently collude with perpetrators to uphold a system in which domestic violence is considered a ‘domestic dispute’ or ‘private’ matter (van Niekerk 2015). It is also important that the positioning of IPV as a matter that is not entirely newsworthy be read alongside the ways in which sexual and other violence against girl children and adult women is positioned as something other than the gendered violence that it is. Such violence is not contextualised as a function of men’s power and domination in society and over women and children. Thus, the media reportage serves to position the horrific levels of violence against women and children as something other than what it is. It works to obscure just how commonplace patriarchal violence is by constructing it within a context of a shock response (Judge 2013) – reporting only on exceptional, unconventional cases of violence that produce a ‘shock’ response positions GBV as something that occurs infrequently, and with little underlying rationale. Reporting (albeit frequently) on ‘isolated’ cases of violence against women and girl children, and

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failing to describe this violence within the frame of a broader patriarchal discourse, does not enable the public to comprehend how South Africa at one time could have been described as ‘the rape capital of the world’ (Human Rights Watch 1995). ‘Dangerous, risky’ (black) men Research on gender-­based and sexual violence in South Africa has constructed strict categories of ‘perpetrator’ and ‘victim’, along the male/female gender binary. Considering the ‘risk profile’ emerging from the research on GBV, it is primarily poor, black4 men who are constructed as ‘perpetrators’ and poor, black women who are constructed as ‘victims’. Describing men’s violence as being exacerbated by high levels of poverty, unemployment and deprivation, in a country where income inequality and other kinds of inequality remain defined along racialised divisions stemming from colonialism and apartheid, means that it is poor, black men who become marked as violent. When black men (and women) emerge as ‘the problem’, it appears as though their very racial identity is a ‘risk factor’ for violence victimisation or perpetration. Poor, black men, as those who continue to be subordinated within a white, hetero-­patriarchal, hypercapitalist system, are constructed as the ‘threat’, and the sources of danger. This construction produces a situation in which African masculinities and sexualities are ‘othered’, and therefore must be interpreted against the backdrop of a long history of racist tropes of black masculinity and sexuality (Shefer 2016). This racialising of GBV is evident in the ways in which the sampling for research studies occurs. It appears that much research conducted on GBV in South Africa includes only black participants from poor, rural or peri-­urban areas – samples that were often intentionally chosen. ‘Disadvantaged’ communities or ‘township’ areas have frequently been the chosen sites for research studies on risky sexual behaviours; substance abuse, including problematic alcohol consumption; HIV risk; and GBV. The collective effect of studies of GBV being conducted almost exclusively with the samples described above is the production of a picture of gendered and sexual violence as being located only in these spaces. It also depicts individuals who live in these areas as either inherently violent or at risk of violence. ‘Disadvantaged’ and ‘township’ spaces are constructed as the only spaces in which people of colour live and they are also seen as ‘deprived’ places with multiple social problems and high HIV infection rates. The lack of critical engagement (which may involve discussion of longer histories of oppression and its continuing manifestations) with current representations of ‘disadvantage’ has produced the situation in which the areas inhabited by poor people of colour are positioned as the only spaces in which social problems occur and reduces the lives of the inhabitants to stigmatised, narrow narratives. Discourses of race and class thus become intimately interwoven so that ultimately ideas about what it means to be ‘black’ and what it means to be ‘poor’ cannot be separated within dominant discursive frames.

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This is not to say that gender-­based and sexual violence do not exist in these contexts, but rather that they are not the only contexts within which such violence occurs. Conducting research only in low-­income areas with predominantly black participants contributes to problematic discourses around what it means to be poor and black in South Africa. Such discourses reduce black identity to limited options and do not pay attention to the multifaceted realities of being black in South Africa. The scope of research in this field needs to be widened to include participants from affluent and/or predominantly white areas in order to show that gender-­based and sexual violence takes place in all areas of society because of the violent patriarchal system in which we live (Gqola 2007). The analysis must also be broadened to account for how inequalities are sustained through broader relations of power. Racialised and classed constructions appear in media reporting too. Much of the reporting on GBV draws on particular constructions of race and class. Despite this, specifically tackling topics of race and class and how they intersect in women’s experiences of violence is often not explicitly addressed in articles themselves. In much reporting, it is implicit (but obvious) that the victims being described are black women and the perpetrators black men. This is often achieved by the author providing the name and description of the place where the violence took place, frequently in the title of the article. In South Africa, as in many other places, geographical spaces and residential areas are marked by the intersections of race and class, to the extent that naming a place is likely to indicate whether the individuals being spoken of are black. Exemplary here is the 2013 article entitled ‘Gugulethu woman’s body found metres from her shack’ (Maregele 2013). Another article reporting on the rape and murder of a teenager provides context by saying: ‘This heinous incident took place in the early hours of yesterday in a shack’ (Seekoei 2014: 1). Naming the victim in the first article as the ‘Gugulethu woman’ informs the reader that the victim is a black woman; and in the second article, indicating that the victim had lived in a ‘shack’ tells the reader that she was poor. In a very similar way, using the same strategies, media reports suggest to readers that the perpetrators of the gendered crimes they report on are black men. Although much reporting on GBV tells the reader that the victims of gender violence are poor and black, there is very little further comment or critique on the broader intersections between gender violence and race and class. It could be argued then that by stating the racial and class profile of victim and perpetrator, media articles collectively do little more than construct gender violence as a poor, black problem – a problem found similarly in analyses of media reporting on GBV (van Niekerk 2015). A dominant narrative within the research focuses on the idea that economically disempowered (read: black and poor) men seek to reassert their dominance through physical or sexual violence (Boonzaier 2005) or the performance of hyper-­masculinity. While it is important to acknowledge the ways in which men of colour have historically been excluded from sources of economic development,

82   Floretta Boonzaier

the argument that men must assert (sexual) power in order to affirm their masculinity is problematic. First, it constructs men – in this case, black men – as having an inherent and uncontainable desire for control and dominance that must be met in any way. Framing this need as innate to all men excuses them from being responsible for their behaviour as they are seen to be driven by a biological, inherent instinct for which they cannot be held responsible. Furthermore, this discourse silences the fact that men who already have considerable social power have gained it at the expense of others and use it to enact violence. Second, reiterating men’s ‘need for power’ creates a very limited version of masculinity that is centred around control and dominance. Researchers (see, for example, Gqola 2007) have highlighted the need to dismantle toxic masculinities as key to preventing GBV, yet academic discourse also needs to shift in the ways in which it positions masculinity. We need to start creating space in academic writing for the transformation of masculinities and think beyond the essentialising ways in which victimhood is associated with femininity and dominance and control is associated with masculinity (Shefer 2016). Third, such theorisations link to hegemonic racist, colonialist discourses about black men’s sexuality. Fanon (2006) highlights how, historically, within white-­dominated society black men have become a stimulus for anxiety, especially in relation to their physicality and sexuality, and have been constructed as a particular threat to white women. There is a long historical narrative of black men’s bodies and sexualities being demonised and seen as a source of danger (Lewis 2011) – a narrative that must be unpacked as we consider the ways academic, media and other forms of discourse produce categories of victims and perpetrators.

Conclusion This chapter has reflected critically on the scholarship on GBV and IPV in South Africa. Given global calls to decolonise knowledge and consider seriously the ways in which the research endeavour works to construct legitimate and illegitimate forms of knowledge, it has been deemed important to reflect on what the research machinery on GBV is ‘doing’, at a discursive level. Decolonising our thinking about gendered violence means working through the epistemic violences of colonisation (through the knowledge-­making economy) and the regimes of images circulating about Africa and its peoples. In light of this, by reflecting not only on our research practices and the questions we ask but also on what meanings can be made from our research, a clear discursive picture is emerging from the literature on the risks of IPV and GBV in the South African context. Beyond the gendered essentialising of the categories of victims and perpetrators, found similarly in the work on gender, power and heterosex (see Shefer 2016), there is also a racialising of the problem of GBV, a marking of black femininity and masculinity as ‘other’. There are important implications of these ways of seeing and interpreting GBV, in that they obscure other ways of seeing that may open up new possibilities

Challenging risk   83

for theorising about violence. Scholars and media practitioners who uncritically talk about the links between poverty, unemployment and gendered and sexual violence (for example) are masking the intergenerational and deeply traumatic violences of past injustices and continuing deprivations and dehumanisations. Deep and close attention must be paid to the ways in which poor, black men are both products of and actors in local and global violent, oppressive structures and systems. A key question is how to study marginalised men’s violences in contexts where they dominate and violate women, and people of other non-­ conforming genders and sexualities, while at the same time giving due recognition to the ways in which they themselves continue to be marginalised and dehumanised by transnational and local relations of power. This thus requires a balancing act between what Hearn (2007: 15) describes as ‘the problems that boys and men create and the problems that boys and men experience’. While the violence men perpetrate against women, people of other non-­ conforming genders and sexualities and other men may be one manifestation of their marginalisation, our focus, as scholars, on the violence in isolation from the context of structural violence and continuing power relations has resulted in an untenable situation where we are complicit in producing the very problematic discourses that we have set out to challenge (Shefer 2016). What we need, then, is a way to begin to take men’s lives, subjectivities, histories and material realities seriously. The binaristic approach to victimhood (Shefer 2016) and the construction of women as inevitable victims also shapes what it is we are able to see and not see. It has been illustrated that the construction of inevitable victimhood has implications for which forms of violence against women we see (the extreme and the shock-­provoking) and which we choose not to see (the everyday violence in relationships). Acknowledging the ways in which our work reproduces particular kinds of knowledge means thinking carefully about the questions we ask, how we ask them and whether these disrupt or reproduce certain assumptions. It also requires that we think carefully about how to recognise the complexities of individual lives, subjectivities and experiences, and incorporate them into our research.

Acknowledgements The research assistance provided by Monique Huysamen and Sorrel Pitcher is gratefully acknowledged.

Notes 1 It is important to note that research on IPV in South Africa has historically been framed within a larger discourse on ‘gender-­based violence’ or ‘violence against women’. This framing is manifest in this chapter as the review moves between work on gender-­based and sexual violence more broadly, and other work that has attended to IPV specifically.

84   Floretta Boonzaier 2 ‘Coloured’ is a racial term and category created by the apartheid government that was used to describe people of ‘mixed’ ancestry. 3 A shebeen is an illegal drinking establishment. 4 The term ‘black’ here is used to describe all groups of people oppressed and marginalised during apartheid.

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86   Floretta Boonzaier and indirect determinants of violence against women and children in South Africa with a view to enhancing violence prevention’, UNICEF. Matseke, G., Rodriguez, V. J., Peltzer, K. and Jones, D. (2016) ‘Intimate partner violence among HIV positive pregnant women in South Africa’, Journal of Psychology in Africa, 26: 259–266, doi: 10.1080/14330237.2016.1185912. Molosankwe, B. (2013, 20 November) ‘Cousin hopes slain cop’s hard work protecting vulnerable wasn’t in vain’, Star, 7. Available from: www.security.co.za/news/26423 (accessed 18 August 2017). Morrell, R. (2001). Changing men in Southern Africa, London: Zedbooks. Mthembu, J. C., Khan, G., Mabaso, M. L. and Simbayi, L. C. (2016) ‘Intimate partner violence as a factor associated with risky sexual behaviours and alcohol misuse amongst men in South Africa’, AIDS Care, 28: 1132–1137, doi: 10.1080/09540121. 2016.1146216. O’Hara, S. (2012) ‘Monsters, playboys, virgins and whores: rape myths in the news media’s coverage of sexual violence’, Language and Literature: Journal of the Poetics and Linguistics Association, 21: 247–259. Phaliso, S. (2013, 3 January) ‘Two held for rape, murder’ The New Age, p. 5. Pitpitan, E. V., Kalichman, S. C., Eaton, L. A., Cain, D., Sikkema, K.  J., Skinner, D., Watt, M. H. and Pieterse, D. (2012) ‘Gender-­based violence, alcohol use, and sexual risk among female patrons of drinking venues in Cape Town, South Africa’, Journal of Behavioural Medicine, 36: 295–304, doi: 10.1007/s10865-012-9423-3. Seekoei, K. (2014, 19 September) ‘14-year-­old girl raped and murdered’, The New Age. Available from: www.pressreader.com/south-­africa/the-­new-age-­free-state/20140919/ 281505044428830 (accessed 18 August 2017). Segal, T. and Labe, D. (1990) ‘Family violence: wife abuse’, in B. McKendrick and W.  Hoffmann (eds), People and Violence in South Africa (pp.  251–287), Cape Town: Oxford University Press. Shamu, S., Abrahams, N., Temmerman, M., Musekiwa, A. and Zarowsky, C. (2011) ‘A systematic review of African studies on intimate partner violence against pregnant women: prevalence and risk factors’, PLoS ONE, 6: e17591, doi: 10.1371/journal. pone.0017591. Shefer, T. (2016) ‘Resisting the binarism of victim and agent: critical reflections on 20 years of scholarship on young women and heterosexual practices in South Africa’, Global Public Health, 11: 211–223. Simpson, G. and Kraak, G. (1998) The illusion of sanctuary and the weight of the past: notes on violence and gender in South Africa, Centre for the Study of Violence and Reconciliation. Online. Available from: www.csvr.org.za (accessed 18 August 2017). Townsend, L., Jewkes, R., Mathews, C., Johnston, L.  G., Flisher, A.  J., Zembe, Y. and Chopra, M. (2011) ‘HIV risk behaviours and their relationship to intimate partner violence (IPV) among men who have multiple female sexual partners in Cape Town, South Africa’, AIDS and Behaviour, 15: 132–141, doi: 10.1007/s10461-010-9680-5. van Niekerk, T. (2015) ‘Respectability, morality and reputation: social representations of intimate partner violence against women in Cape Town’, unpublished thesis, University of Cape Town. Vetten, L. (2000) ‘Gender, race and power dynamics in the face of social change: deconstructing violence against women in South Africa’, in Y.  J. Park, J. Fedler and Z. Dangor (eds), Reclaiming Women’s Spaces: New Perspectives on Violence against Women (pp. 47–80), Johannesburg: Nissa Institute for Women’s Development.

Challenging risk   87 Vogelman, L. and Lewis, S. (1993) ‘Gang rape and the culture of violence in South Africa’, Der Überblick, 2, 39–42. Wang, H., Xu, J., Shang, H. and Wang, N. (2015) ‘Bibliometric analysis of worldwide literature in the research of intimate partner violence in the last 10 years’, Chinese Journal of Epidemiology, 36: 1172–1175. Watt, M. H., Guidera, K. E, Hobkirk, A. L., Skinner, D. and Meade, C.  S. (2016) ‘Intimate partner violence among men and women who use methamphetamine: a mixed-­methods study in South Africa’, Drug and Alcohol Review, 36: 97–106. Wilson, G. (2014, 9 January) ‘Sex attacks up over holidays’, The Herald. Available from: www.pressreader.com/south-­africa/the-­herald-south-­africa/20140109/28170690752 7383 (accessed 18 August 2017). Wood, K. (2005) ‘Contextualizing group rape in post-­apartheid South Africa’, Culture, Health & Sexuality, 7: 303–317.

Chapter 5

Surveying the womanscape Objectification, self-­o bjectification and intimate partner violence Jan Jordan

Men act and women appear. Men look at women. Women watch themselves being looked at. This determines not only most relations between men and women but also the relation of women to themselves. The surveyor of woman in herself is male: the surveyed female. Thus she turns herself into an object. (Berger 1972: 47; emphasis in original)

A twenty-­first-century cliché declares that we live in a post-­9/11 world, repeatedly thrusting before our eyes images of towers crumbling, buildings burning, screaming faces running for their lives. Since 2001 such horrors have been immortalised not only in memorials but also in the psyches of all of us who witnessed the shock of that day, in whose minds the images have been irrevocably etched. We were told this atrocity was committed by someone ‘other’, someone whose spectre so threatened our democracies that we should accept whatever limitations to our lives the state deemed necessary to save us from such monsters. In the aftermath of this event, and subsequent terrorist bombings and attacks across England and Europe, ever more stringent security measures have been introduced under the mantle of making our lives safer (Mythen, Walklate and Khan 2009). This chapter takes as its starting point Rachel Pain’s (2014) article connecting global and domestic terrorism and seeks to explore further dimensions associated with the terrorism that intimate partner violence (IPV) can represent. While acknowledging that the victims of IPV can represent all genders and that such violence occurs also in same-­sex relationships, the explicit focus here is on women as victims within the context of heterosexual relationships. The first section examines the concepts of othering and dehumanisation, and the role they play in objectification. Examples from the research on IPV are then considered to demonstrate the objectifying similarities often evident in how men perceive and interact with their partners preceding and during abusive episodes. Objectification theory is presented as a framework for understanding how women are impacted upon when they experience ongoing objectification, leading to a discussion of self-­objectification and its associated harms. The focus

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then broadens to the wider social environment to consider the utility of these concepts within the context of increased bodily surveillance and debates regarding women’s agency. The conclusion emphasises the need for objectification to be challenged in order to enhance women’s safety and security, and argues for the importance of maintaining a structural analysis in an age dominated by discourses reflecting neoliberal individualism.

Responding to terrorism When domestic violence was first ‘discovered’ in the 1970s, one criticism frequently made was that it was perceived as a private event (Dobash and Dobash 1979; Walklate 2008). Historically, crimes in the public realm have been regarded as the most serious and deserving of attention and resources. Reflecting perspectives harking back to the patriarchal ownership of women, men’s homes were perceived as off limits to state intervention – a man’s home was his castle, surrounded by an invisible moat of masculine privilege. The development of contemporary policing in the early nineteenth century both reflected and reinforced this distinction, the inference being clear that the police would regulate men’s behaviour in public settings while men were expected to control women and children within the home. Within the context of contemporary concerns about terrorism, the public/ private divide remains pervasive. As Pain (2014) argues, global terrorism is relatively rare but its high-­profile occurrence and the fear it engenders ensure that it remains massively resourced – at the expense of the millions of women worldwide who experience the everyday terrorism that is IPV. One obvious contrast between global and everyday terrorism is evident in the lack of collective recognition given to those victimised by IPV. Rather than collective grief that takes diverse forms, individual pain is often gagged by collective silence. There are no public memorials marking the significance of the trauma of people who have experienced everyday terrorism, their children and other loved ones (Pain 2014: 542). Extending Pain’s analysis, efforts to make sense of global terrorism contain frequent references to the roles played by othering and dehumanisation that I argue both enable the commission of terrorist acts as well as shape our responses to those enacting them. Accounts from those accused of terrorist action often demonstrate an inability or unwillingness on their part to view those they target as human beings. Recent attacks conducted by ISIS militants have revealed that they call those they attack ‘infidels’ and see them as the enemy (Faul and Umar 2016). Common responses to terrorism from those in the West reflect similar objectifying tendencies – terrorists are seen as the face not of ISIS but of Islam, and all Muslims viewed as suspicious (Mythen, Walklate and Khan 2009). While contemporary examples abound, the practice of ‘othering’ the enemy  is by no means a new one. The key driver informing othering is fear.

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As Zygmunt Bauman has argued, when violence and hatred are endemic, social relationships become riddled with fear and anxiety and trust evaporates (Bauman 2006). Fear and othering are manifest in the proliferation of derogatory slang terms used to reference those viewed primarily in terms of their difference – ethnic slurs such as ‘wog’, ‘nigger’, ‘gook’; and homophobic insults such as ‘dyke’ and ‘faggot’. Name-­calling is often the precursor to other forms of abuse, perceived as justifiable when perpetrated against a despised and alien object. It was, for example, overtly evident in the language used by Nazi exterminators against those of Jewish ancestry, with Hitler speaking of his ‘right to eliminate millions of an inferior race that multiplies like vermin’ (quoted in Fest 1974: 680). This is the power of dehumanisation – if we can reduce someone to non-­person status, we can justify, to ourselves and others, denying them respect, rights and recognition. Empathy for others becomes irrelevant when we cast them in the category of ‘other’. Somewhat surprisingly, comparatively little research has been undertaken exploring the role objectification might play in relation to IPV. The next section begins to explore how this concept may be relevant to understanding the dynamics of IPV.

Intimate partner violence Over four decades of research on IPV has provided a considerable body of material that is useful as we grapple with trying to prevent its occurrence and increase women’s safety. An early feminist commitment to breaking the silence around matters previously deemed private has resulted in a proliferation of accounts from victims (Dobash and Dobash 1979; Martin 1976). Women have often reported that their abusers call them names like ‘bitch’ and ‘whore’ before hitting and in other ways hurting them, as if such abusive language legitimates their actions (Hydén 1995; Wetzel and Ross 1983). Less frequently conducted has been research seeking to hear perpetrators’ voices, yet these hold potential insights that may be useful in designing both treatment and prevention initiatives. While differences of class, culture and ethnicity exist, a common refrain emerging from these accounts raises questions regarding the ways boys are socialised according to dominant norms of hegemonic masculinity (Connell 1995; Dobash and Dobash 1998; Hearn 1998; Mullaney 2007). The ultimate fear for many men is that other men will devalue them to female status. From being called a ‘sissy’ or ‘girl’ in playground insults, through to taunts, even violence, for being (or looking like) a ‘faggot’, men learn what failed masculinity looks like and the price to be paid for it. Definitions of acceptable forms of masculinity typically reference male dominance and control, men’s physical strength and emotional toughness, and their refusal to be ‘bossed around’ by women (Connell 1995; Messerschmidt 1993). Not surprisingly, research with male abusers has often found men articulating discourses of dominance and entitlement, their views of women’s inferiority

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justifying the use of a range of controlling behaviours to keep them in their place (Adams, Towns and Gavey 1995; Anderson and Umberson 2001; Kelly and Westmarland 2016; Mullaney 2007; Totten 2003). Drawing on Butler’s (1990) concept of performativity, we can view men’s gender performances as demonstrating masculine subjectivity within an environment where male power is perceived as ‘natural’ rather than socially constructed and bestowed. Through their use of violence, male batterers assert control and endorse the dominance of male subjectivity complemented by female objectification. In this way, hierarchical gender systems and structured inequalities are maintained and reinforced (Anderson and Umberson 2001). While few men may explicitly refer to their partners as ‘objects’, such a view is often reflected in the ways they describe their interactions with women. Little research has been conducted on the relationship between men’s verbal aggression and woman-­battering in marital relationships, despite widespread acknowledgement that verbal abuse is frequently a component of IPV (Hydén 1995; Wetzel and Ross 1983). A study based on the narrative accounts provided by 20 couples, in which the woman had been the victim of assault/aggravated assault from the man, revealed that in 18 of these cases the physical assault was preceded by a ‘verbal fight’ characterised by ‘the communication of worthlessness’ (Hydén 1995: 62). As described by the researcher: ‘By inducing a feeling of “worthlessness” and inferiority, the speaker in question plays for the dominant role’, using violence as ‘a very effective means of compelling subordination and of damaging their counterparts self-­esteem’ (Hydén 1995: 69). In a United Kingdom (UK) study based on interviews with male perpetrators, some of the men’s comments were compared with Stark’s (2007) depictions of coercive control because of the ways men actively sought to diminish women (Kelly and Westmarland 2016). For example, one man recounted: I’d call her names, I’d basically just be horrible to her. So I mean be – well, like I say, aggressive, I’d swear at her, I’d take the piss out of her to make her feel small, make her feel bad, and that’s basically about it. (Emil, quoted in Kelly and Westmarland 2016: 121) Research conducted with male abusers often shows their adherence to traditional patriarchal concepts of gender relations that position men as needing to assert their control over women, reflected in comments such as ‘a real man never lets a woman boss him round’ and ‘a real man keeps his missus under his thumb’. Accounts from such men typically demonstrate that they have internalised views endorsing masculine authority and aggression (Adams, Towns and Gavey 1995; Caron and Carter 1997; Messerschmidt 1993; Wood 2004). For example, in anthropologist Philippe Bourgois’s ethnography of Puerto Rican drug dealers, young men provided graphic descriptions of the violence they used against women, including regular participation in gang rapes. Their accounts demonstrated a belief in their superiority and entitlement to the bodies of girls

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and women who existed as objects of conquest. One man described his mates holding down a teenager so that she could be ‘boned’ by them all, stating of her, ‘She was there like a hole’. He added, ‘She’s a piece of meat – already fucked up’ (Bourgois 2004: 344). Wood’s interviews with men incarcerated as batterers in US prisons also showed that many believed they were entitled to use violence to control and discipline their female partner. In explaining what he had learned from observing his peers, one interviewee stated: I see a lot of guys tame their woman, intimidate her. I get a rush out of it – control ’em, intimidate ’em, tell ’em who can be their friends.  (Demetrius, age 23, quoted in Wood 2004: 563) He maintained such ‘taming’ to be essential, explaining: A woman’s kind of like a dog. You got to break ’em. A dog don’t do right, you beat it ’til it do what you say. It either leave or be broke. Same with women. (Demetrius, age 23, quoted in Wood 2004: 556) Another spoke of how ‘natural’ it was for him to ‘dish out’ the violence and her to take it, and articulated a belief that women existed to serve and please men. He expected ‘to be the center of her world’, describing how this meant the following: I had her basically trained to fix my supper and wash my clothes. She wouldn’t dare let me get up outta my chair, fix my own drink. I didn’t wanna get up, fix my own drink. And then she kinda got tired of it. [I’d say,] ‘Bitch, fix me something to drink.’ And if she didn’t, then it [the violence] would just start all over again. (Gabe, quoted in Wood 2004: 568) For men like Demetrius and Gabe, feeling confident in their manhood enabled them to justify their use of violence and to believe themselves entitled to control relationships, while others who felt less sure that they measured up used control and abuse to secure women’s deference and reassure themselves of their masculinity (Wood 2004). Either way, women were at risk. While Wood’s study was conducted with men incarcerated for violence, other researchers have observed, harking back to Brownmiller (1975), that the majority of men do not need to employ violent means to perpetuate gender hierarchies. As Hunnicutt argues: Those males who occupy a seat at the patriarchal table are less likely to need ‘violence as maintenance’ because their elevated position is sustained

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in legitimate ways…. Direct threat and coercion are hardly necessary in a  world where gender relations are entrenched and remarkably self-­ perpetuating. (Hunnicutt 2009: 560–561) One of those ‘legitimate’ ways for men can be exercised through partner selection, with even the most powerful men in the world demonstrating a belief that they increase their male status points by having a younger, beautiful woman as their trump card. A study conducted in the US exploring what attracts men who batter to their partners found that two-­thirds of men cited physical attractiveness, the authors stating that this finding was consistent with the possessiveness displayed by these men and their viewing of their partner as a ‘prize possession’ (Saunders et al. 2011: 2757). Saunders et al. suggested a link between these men’s objectification of their partners and an increased likelihood of both their initial violence as well as an elevated risk of recidivism following treatment. Prizing women for their beauty may sound innocuous until we identify the ways in which its attainment necessitates female pain and powerlessness. In China, for example, for more than 1000 years little girls’ feet were broken and maimed to keep them small enough to fit the tiny ornamental shoes made fashionable through foot-­binding (Croll 1978; Drucker 1981). Men deemed these putrid stumps erotic, referring to them by the euphemistic term ‘lotus hooks’ and incorporating them into a range of male-­gratifying sexual practices (Levy 1966). What accounts from Chinese men reveal, however, is that the biggest aphrodisiac came from having virtually total power over their dependent, foot-­bound wives (Croll 1978). While contemporary Western nations may condemn such a bizarre custom, we do not have to look hard to find similarly destructive practices within ‘cosmetic’ industries in European cultures. Being an object of beauty can have very ugly consequences. Considering object-­status further, in the next section I turn to a discussion of objectification theory and begin to explore its utility in relation to understanding the dynamics associated with IPV.

Objectification theory From art to advertising, women’s bodies have historically been presented in objectified and often sexualised ways that have emphasised their physical attributes. As the harms associated with objectification began to be understood, and feminist thinking developed, theorists sought to analyse and explain its processes and impacts. Fredrickson and Roberts (1997) are often credited with developing objectification theory, advancing it to explain the experiential outcomes associated with being female in a socio-­cultural environment where the female body is frequently objectified. The politics of objectification is evident in the ways in which women are often depicted in a disempowered state, reinforcing images of women as victims,

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lacking agency, powerless in relation to men. This can increase fear levels and contribute to high levels of violence against women. Perhaps most detrimentally, it can remove the very belief in self needed to act in one’s own safety, for, as Martha Nussbaum argues: Given that the objectified is a human being, objectification confers a spoiled, or stigmatized, identity, and is thus a species of shaming.  (Nussbaum 2010: 73) The objectification of women’s bodies contributes to an environment within which how a woman looks becomes her central defining characteristic. Implicit within this is the dominance of what is often called ‘the male gaze’, a term developed by British film critic Laura Mulvey in her 1975 essay ‘Visual pleasure and narrative cinema’. Under this male gaze, men dominate as spectators while women are positioned as objects. This has translated into men’s movie roles being more active – the male hero as the locus of action, admired for his deeds. Women typically feature in secondary roles, appraised more in relation to how they look than what they say or do. Women are thus presented on screen as objects for men’s sexual pleasure, as typified in such enduring movie constructions as James Bond and the Bond girls, where the women’s very identities referenced the hero’s own name. A range of consequences flows from being either the looker or the looked at. As Ann Kaplan argues: Men do not simply look; their gaze carries with it the power of action and possession that is lacking in the female gaze. Women receive and return a gaze, but cannot act upon it. (Kaplan 1983: 311) Within such a construction, a woman finds her identity as an object of men’s desire. She views the world, including other women, through the male gaze. In losing her subjectivity, she is effectively dehumanised and becomes an object that can be used to perform any function desired by the subject. As the ‘other’, a  dehumanised woman can be bashed, raped, even killed – like the Jews and  homosexuals of Nazi Germany, she is ‘vermin’ and vermin are easily exterminated. Being objectified can be linked to victimisation through men’s failure to perceive and relate to women in their full humanity. An object exists to be used and to be done unto, so objectifying a woman enables otherwise potentially caring men to act without empathy and compassion. Erasing another person’s subjectivities reduces a feeling, thinking human being not only to object-­status, but also to an object as seen, defined and used by another person. This process has similarities with the acts of colonisers invading ‘new’ lands, using and taking whatever spoils they deem valuable and useful to themselves.

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It is here that we must also recognise that, as with colonisation, the possessed object is not totally passive but able to resist. This speaks to such responses as the capacity for self-­defence, resilience and survival. Thus, those experiencing objectification may decide to challenge this by asserting what is left of themselves, attempting to re-­establish a sense of control over their lives. Assertion of self can, however, provoke male retaliatory violence. It can also, ironically, translate into increased self-­objectification in the case of women who try to achieve greater control over their bodies through dietary practices that can result in the development of eating disorders (Gervais and Davidson 2013). In the next section I examine the ways in which women are impacted by self-­ objectification.

Self-­o bjectification Fredrickson and Roberts (1997) argue that objectification results in women internalising media and other perspectives in their quest to define themselves. The resulting self-­objectification can lead to habitual self-­monitoring which in turn can lead to such harmful consequences as increased body shame and anxiety. Over time, self-­esteem can be eroded with negative consequences including depression, eating disorders, self-­mutilation, and drug and alcohol abuse. While being objectified per se may not always be harmful, it becomes so when the awareness of being looked at becomes internalised as the dominant perspective. The ability to look outwards from oneself to the world is replaced by the view from the outside looking back. This is when self-­awareness is replaced by self-­surveillance, the constant monitoring of ‘How do I look?’ that replaces ‘What do I see?’ with ‘How am I seen?’. Within such a framework, it is no surprise that high levels of body shame and self-­surveillance among women become normative (Carr and Szymanski 2011; Moradi and Huang 2008). Research on objectification has predominantly focused on sexual objectification, with studies showing how the everyday sexual harassment of women in public places is harmful and contributes to their self-­objectification (Fairchild and Rudman 2008; Gardner 1995). This research has concentrated, for example, on how women may experience the actions of acquaintances and strangers as objectifying when the latter respond to their presence with sexualising wolf-­ whistles and catcalls. Less well-­studied has been the ways in which objectification may be evident within IPV contexts. This arena has become a focus for research attention only within the past five years or so, with studies producing interesting results raising multiple issues for consideration. Most of the studies to date have been conducted with American college students (see, for example, Davidson and Gervais 2015; Tully 2012). Gervais and Davidson’s (2013) study, for example, was explicitly concerned with examining the associations between IPV and self-­objectification for a predominantly young, white sample of college women from a large Midwestern university in the US.

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They found that experiences of physical and psychological abuse were related to both increased body surveillance and increased body shame, while psychological abuse additionally showed links with increased self-­objectification. Gervais and Davidson suggest that psychological abuse may be more associated with appearance-­related outcomes than physical abuse because the former is often specifically targeted at a woman’s body image – for example, when women are repeatedly told, ‘You’re so ugly’ or ‘You’re too fat’. Such findings indicate that objectification theory may serve as a useful framework for understanding the body-­related impacts of psychological abuse from an intimate partner. The undermining of women’s control of their environment may prompt women to try to restore power in their lives through a preoccupation with their appearance: Because IPV undermines women’s control over their environments … women may direct attention to their appearance in an effort to reestablish control after experiencing psychological or physical abuse from their partners. That is, after experiencing IPV, self-­objectification and body surveillance may be psychological mechanisms used by women to restore control over their environment and their circumstances (Gervais and Davidson 2013: 38) Increased, even constant, self-­surveillance can emerge as an outcome of IPV of which clinicians, Gervais and Davidson suggest, should be cognisant when women present with body image issues. While it is becoming more widely recognised that objectification and self-­ objectification serve as mechanisms enabling the abuse of women by men, less well understood is that these processes also facilitate peer abuse from other women. The next section considers this within the context of the potentially harsh impacts emanating from the increased scrutiny and surveillance of women’s bodies by all genders in the twenty-­first century.

Body surveillance Technological advances in tandem with globalised fears of terrorism have seen a recent proliferation in the expansion of citizen surveillance. State measures within public spheres have been accompanied by the increased scrutiny of private lives, whether achieved through a range of media forms or by the growing willingness to place one’s life online for external scrutiny via Facebook and other forms of social media. While presented as equally and universally accessible, such technology has been appropriated and applied in traditionally gendered ways that extend the potential for men’s abuse of women both individually and collectively. Online harassment and stalking are now part of the repertoire of controlling behaviours, while previously geographically isolated ‘men’s rights’ activists’ have discovered that they can now fuel their misogyny through online global blogs (DeKeseredy and Olsson 2011).

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Women’s bodies have also come under increased scrutiny. While in George Orwell’s world fears were expressed about the increased ways ‘Big Brother’ was watching us, in the world of contemporary fashion magazines it is ‘Big Sister’s’ surveillance that seems inescapable. The preoccupation of women’s magazines with appearance-­related issues bombards women every day with images of what is deemed attractive and who is deemed desirable. The women our culture hails as ‘celebrities’ are particularly harshly monitored, any weight gain photographed and mocked, and websites clamouring to show ‘before and after’ shots of how the icons have fallen (see, for example, 8 of the most shocking celebrity weight gains (DAMN They blew up!) Styleblazer.com 2012). Such endless scrutiny is internalised and subsequently manifest in relentless self-­surveillance accompanied by comparisons with other women – ‘Does she have a bigger butt than me?’, ‘A woman her size shouldn’t wear such a fitting top’, ‘Those breasts can’t be real!’. A hyper-­awareness of oneself as an object of scrutiny promotes a range of responses. Some women respond to the self-­ objectification that follows with increased efforts to change and alter their physical appearance to better fit the projected ideal. While this could be interpreted as a woman taking control of herself and exerting greater agency, the motivating factors are often self-­hatred and rejection. This can result in ultimately self-­ destructive behaviours, including excessive weight loss from anorexia or bulimia (Calogero 2009; Tylka and Hill 2004) and repetitive, invasive cosmetic surgeries. The obsession with appearance can translate into pressure to stay looking forever beautiful, forever young. Their lowered self-­esteem increases their vulnerability to other negative outcomes such as depression, sexual dysfunction and substance abuse (Calogero and Thompson 2009; Carr and Szymanski 2011; Fredrickson and Roberts 1997) – and, I would add, IPV. The outcome can become a vicious cycle where partner abuse and self-­abuse are mutually reinforcing. Before moving on, it should be pointed out that women do not have a monopoly on object-­status – the history of cinema shows men from Rudolph Valentino onwards being presented as sexualised heart-­throbs for adoring female audiences. We can see that male objectification also is in many ways increasing, accompanied by growing numbers of men seeking hyper-­masculinised ideals, with similar costs attached as the eating disorders and body obsessiveness women have experienced (Duggan and McCreary 2004). Men being looked at, however, has a different meaning from women being looked at. Even sexualised male celebrities like George Clooney are depicted and responded to as having greater substance than mere looks alone; and should their physical attributes fade with age, they retain their status as powerful men. Any ‘body’ can be objectified, but structural and gendered inequalities determine how this impacts on individual lives. While self-­objectification has been linked to many harms, one less visible but possibly even more pernicious harm is in the reinforcement of female passivity and erosion of female agency. When ‘being seen’ replaces ‘doing’, the resulting docility brings its own political advantages. Naomi Wolf recognised the politics

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of objectification in 1991 when she analysed the links between the growth of feminism and the expansion of the beauty industry and argued for the notion of feminist backlash. She suggested that the burgeoning fashion and cosmetic industries could be viewed as a means of ensuring that any increased economic power by ‘liberated’ women would be diverted into practices that essentially reinforce their object-­status. The more money a woman has at her disposal, the greater is the pressure to show that she still belongs within the confines of acceptable femininity. Any threat posed by her political or economic status could be at least partially neutralised by surveying and judging her according to ‘real woman’ standards. When we consider the nature of those standards, the most obvious features are ones that would confuse liberation-­seeking 1970s feminists who, among other things, argued that women should dress for comfort and wear ‘sensible’ shoes. How, they might ask, does the young girl today who dresses in clothes once deemed indicative of porn star status conform to the acceptable image of the liberated female? Responses typically emphasise agency and choice, claiming that female empowerment enables the contemporary young woman to express her authentic sexual self. The question implicitly posed by writers such as McRobbie (2009) and Gill (2007a, 2007b), however, is: according to whose values is she being authentic? And how do we explain the curious coincidence that her contemporary representation accords so closely with traditionally expressed male sexual fantasies and the pornographic depictions railed against by 1980s feminists? Or, one could cynically ask, how come it serves patriarchy so well? Consistent with the above, it is not surprising that a recent study by a UK psychologist produced evidence suggesting that, since self-­objectification is associated with women paying increased attention to how they look rather than how they feel or what they can do, it negatively impacts on women’s willingness to engage in gender-­based social activism (Calogero 2013). Claims of increased agency and empowerment are offset by the expanded reach of the beauty and fashion industries and the self-­regulation resulting from internalising regimes of disciplinary power (Evans, Riley and Shankar 2010). In this way women with high levels of internalised self-­objectification are more likely to accept sex object status and comply with traditional gender roles (Calogero 2013). As McRobbie (2009) has observed: The young woman is congratulated, reprimanded and encouraged to embark on a new regime of self-­perfectibility.… Patriarchal authority is subsumed within a regime of self-­policing whose strict criteria form the benchmark against which women must endlessly and repeatedly measure themselves from the earliest years right through to old age. (62–63) Such macro-­level processes are mirrored within intimate relationships when  expressions of women’s agency and assertiveness are undermined by

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body-­shaming and humiliation. In this way, objectification and self-­ objectification contribute to the complex dynamics characterising relationships within which different forms of violence and abuse are manifest. However, while many feminists have used objectification as a conceptual lens, others have questioned its utility. The next section considers some of the limitations associated with the concept of objectification and assesses its relevance for enhancing our understanding of IPV.

Placing ‘objectification’ under surveillance One of the strongest critiques of objectification has come from Ann Cahill, who has cogently argued against the implicit Kantian notions of the body inherent within the theoretical works of writers such as Martha Nussbaum (2010) and Rae Langton (2009). Cahill (2011) rejects the marginalisation and devaluation of the body within such theories, and asserts: Marginalising the body from the self leads feminist critiques of objectification to an almost necessary suspicion of things bodily. Yet to be treated as a thing, a body, is not inherently degrading because we are, in fact, bodily things; it is only within the context of a theory of personhood that vilifies the material that such treatment becomes degrading. (25) She proposes, instead, the use of the term ‘derivatisation’, arguing that the ethical problem of sexual objectification emerges not from perceiving women as things or objects but from the processes by which a (predominantly male) subject reduces her subjectivity to accord with his own desires and fears. The ethical wrong is that ‘feminine subjectivity and sexuality are constructed as wholly derivative of masculine subjectivity and sexuality’ (34). Cahill’s reconceptualisation has prompted useful philosophical debate over the previously under-­theorised term of objectification. One strand of thought argues that objectification need not be viewed as universally harmful and posits that some women may seek their own sexual objectification and want men to desire them in their sexual selves. Such considerations immediately raise questions about choice and agency – a terrain now well-­established as a feminist theoretical minefield. As noted earlier, considerable scepticism has been voiced by some regarding the extent to which young women’s sexual liberation in a supposedly post-­feminist world can be embraced as truly emancipatory (Gill 2007a; McRobbie 2009). While dominant discourses may emphasise a woman’s right to choose, promote journeys of self-­discovery, and validate the embracing of one’s own sexual power, these processes all occur against a social and political backdrop still heavily infused with consumerist capitalism and hegemonic masculinity. What is particularly frightening in the contemporary setting are  the  layers of liberatory pretence masking the continuation of patriarchal

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dominance. In describing the ‘post-­feminist masquerade’, McRobbie refers to it as ‘a highly-­styled disguise of womanliness which is now adopted as a matter of personal choice’ (67). Rosalind Gill has similarly observed how contemporary narratives of freedom and choice mask the colonisation of women’s bodies by regimes of disciplinary power. The ‘sexy body’ posited as the key to modern female identity, she argues, is: presented simultaneously as women’s source of power and as always unruly, requiring constant monitoring, surveillance, discipline and remodeling (and consumer spending) in order to conform to ever narrower judgements of female attractiveness. (Gill 2007b: 149) The ‘male gaze’ has also virtually disappeared as a theoretical construct from contemporary post-­feminist debate. I would argue, however, that this is not because it has been replaced by a more gender-­reflective egalitarian gaze but instead arises from its perspective having been internalised by women through self-­objectifying (or derivatising) processes. Whereas early second-­wave feminist writing often depicted women conforming to femininity standards as being motivated by the need and desire for male approval, recent research indicates that young women seek peer validation of themselves as sexy and desirable (Evans, Riley and Shankar 2010). Selfie sticks and smartphones enable constant self-­surveillance while providing the means for instant peer feedback. This potential narcissism sits comfortably alongside neoliberal discourses encouraging individual self-­advancement. Within such a context, the underlying structural factors linked to social inequalities disappear from our conceptual radar. What are the implications of this discussion for how we understand IPV? The answers to such a simple-­sounding question are too complex to be fully addressed here, so instead I raise possible strands for future analysis. As a starting point, we can see how the emphasis on individualised narratives obscures recognition of the social and structural contexts within which such violence is perpetrated. An over-­emphasis on individual agency and choice can translate into perceptions, even accusations, of individual responsibility for ‘choosing’ to stay in violent relationships and ‘supporting’ the perpetrators. Rationales for intervention fade amidst claims that she might just like a bit of ‘rough’. Any recognition of gendered violence is thus erased and intersectionalities with other factors such as class and ethnicity are also rendered invisible. A further outcome arises from the ways in which the widespread sexualisation of women’s bodies through multiple forms of media and social media may increase the risks of men using these as justifications for violence against their partners. For example, concern is growing in many quarters over the nature, proliferation and influence of contemporary pornography (Bridges et al. 2010; DeKeseredy 2015). Bridges et al. (2010) studied 304 scenes in 50 of the then most popular pornographic DVDs and found that nearly 90 per cent featured

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physical aggression (mainly spanking, gagging and slapping), while approximately half included verbal aggression. As described by one researcher: a routine feature of contemporary pornographic videos is painful anal penetration, as well as brutal gang rape and men slapping or choking women or pulling their hair while they penetrate them orally, vaginally, and anally. (DeKeseredy 2015: 831) The underlying message is clear: she exists as the object on which he acts out a cruel mix of fantasy and misogyny. Exposure to such material is not unrelated to real-­world violence against women. In a study of abused women living in rural Ohio, 28 of the 43 women interviewed noted that their partners viewed pornography, with 12 stating that they believed this was linked to the violent assaults they experienced (DeKeseredy and Hall-­Sanchez 2017). Given the secretive nature of much pornography viewing, the researchers believed these findings to be on the conservative side. Technological advances have also extended the means available for stalking, harassment and surveillance, adding also to the repertoire of possibilities through which threats and insults can be communicated. For women victimised in such contexts, the potential for self-­blame is magnified also – she risks believing that she has used her sexual freedom to make herself the ‘whore’ he now accuses her of being. In addition, she may be vulnerable to increased bodily self-­ hatred and reduced self-­esteem from feeling that she has failed to meet contemporary standards of perfected beauty. In a social environment dominated by choice and freedom narratives, many women will struggle to speak about situations they fear they will be judged for ‘getting themselves into’. Ironically, the more exposed women’s bodies have become, the less we see of their agentic selves, while the more we maintain that all women should have a voice, the more pervasive the silencing mechanisms become. The feminist imperative to continue surveying the womanscape remains as urgent as ever.

Conclusion This chapter has argued for greater recognition of the role played by objectification in enabling and facilitating all forms of IPV. Whether one retains the concept of objectification or replaces it with derivatisation, the consequences emanating from both remain similarly harmful. Both deny women autonomy and agency – a reality masked within the post-­feminist context by a neoliberal veneer emphasising individual expression and self-­advancement. The concepts explored in this chapter all share a common energy source. The power of patriarchy fuels a gender hierarchy that has enabled centuries of historical and cultural practices oriented towards maintaining men’s dominance

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over women (Jordan 2004). Both threatened and actual violence towards women have served to ensure such dominance, while also pitting men against men in quests for alpha male status, and women against women for survival. Men’s fears of the impacts of feminism have resulted in an increased focus on measures intended to keep women in the silenced and objectified states patriarchy has come to rely upon. Objectification by individual men not only occurs within the context of gendered power relations but is also reinforced by the constant sexual objectification of women’s bodies within the socio-­cultural landscape. Twenty-­first-century millennials of all gender identities have grown up in an era where they are bombarded with more images of sexualised women’s bodies than any previous generation has been exposed to. The message is clear – to be wanted and desired women must look sexy, youthful and desirable, preferably 24/7. Striving to achieve ‘the look’ channels women’s energies and resources into individual enhancement, and the unrelenting surveillance of themselves and other women. Within such a toxic climate, gendered and structural analyses of power relations are eroded. This chapter arose from my perception that objectification is a far more pervasive and dangerous feature of our lives than is often recognised. The dehumanising that enables internationally feared and condemned acts of public terrorism is on the same continuum as that which enables and facilitates acts of IPV. Objectification is only one part of the process, but it is one needing far more critical attention in a world where women’s safety and security remain tenuous, and where those seen as ‘other’ can so easily be exterminated.

References Adams, P. J., Towns, A. and Gavey, N. (1995) ‘Dominance and entitlement: the rhetoric men use to discuss their violence towards women’, Discourse & Society, 387–406. Anderson, K. and Umberson, D. (2001) ‘Gendering violence: masculinity and power in men’s accounts of domestic violence’, Gender & Society, 15(3): 358–380. Bauman, Z. (2006) Liquid Fear, Cambridge: Polity Press. Berger, J. (1972) Ways of Seeing, London: Penguin. Bourgois, P. (2004) ‘Gang rape’, in N. Scheper-­Hughes and P. Bourgois (eds), Violence in Times of War and Peace: An Anthology (pp. 343–347), London: Blackwell Publishing. Bridges, A. J., Wosnitzer, R., Scharrer, E., Sun, C. and Liberman, R. (2010) ‘Aggression and sexual behavior in best-­selling pornography videos: a content analysis’, Violence Against Women, 16(10): 1065–1085. Brownmiller, S. (1975) Against Our Will: Men, Women and Rape, Harmondsworth: Penguin Books. Butler, J. (1990) Gender trouble: Feminism and the Subversion of Identity, New York: Routledge. Cahill, A. (2011) Overcoming Objectification: A Carnal Ethics, New York: Routledge. Calogero, R. M. (2009) ‘Objectification processes and disordered eating in British women and men’, Journal of Health Psychology, 14: 394–402.

Surveying the womanscape   103 Calogero, R. M. (2013) ‘Objects don’t object: evidence that self-­objectification disrupts women’s social activism’, Psychological Science, 24(3): 312–318. Calogero, R. M. and Thompson, J. K. (2009) ‘Potential implications of the objectification of women’s bodies for women’s sexual satisfaction’, Body Image, 6: 145–148. Available from: http://dx.doi.org/10.1016/j.bodyim.2009.01.001 (accessed 18 April 2017). Caron, S. L. and Carter, D. B. (1997) ‘The relationships among sex role orientation, egalitarianism, attitudes toward sexuality, and attitudes toward violence against women’, The Journal of Social Psychology, 137(5): 568–587. Carr, E. R. and Szymanski, D. R. (2011) ‘Sexual objectification and substance abuse in young adult women’, The Counseling Psychologist, 39: 39–66. Available from: http://dx. doi.org/10.1177/0011000010378449 (accessed 29 March 2017). Connell, R. (1995) Masculinities, Berkeley, CA: University of California Press. Croll, E. (1978) Feminism and Socialism in China, New York: Schocken Books. Davidson, M. M. and Gervais, S. J. (2015) ‘Violence against women through the lens of objectification theory’, Violence Against Women, 21(3): 330–354. DeKeseredy, W. S. (2015) ‘Critical criminological understandings of adult pornography and women abuse: new progressive directions in research and theory’, International Journal for Crime, Justice and Social Democracy, 4(4): 4–21. DeKeseredy, W. S. and Hall-­Sanchez, A. (2017) ‘Adult pornography and violence against women in the heartland: results from a rural southeast Ohio study’, Violence Against Women, 23(7): 830–849. DeKeseredy W. S. and Olsson P. (2011) ‘Adult pornography, male peer support, and violence against women: the contribution of the “dark side” of the internet’, in M. Vargas Martin, M. Garcia-­Ruiz and A. Edwards (eds), Technology for Facilitating Humanity and Combating Social Deviations: Interdisciplinary Perspectives (pp.  34–50), Hershey, PA: IGI Global. Dobash, R. E. and Dobash, R. P. (1978) ‘Wives: the “appropriate” victims of marital violence’, Victimology: An International Journal, 2(3–4): 426–442. Dobash, R. E. and Dobash, R. P. (1979) Violence against Wives: A Case against the Patriarchy, New York: Free Press. Dobash, R. E. and Dobash, R. P. (1998) ‘Violent men and violent contexts’, in R.  E. Dobash and R.  P. Dobash (eds), Rethinking Violence against Women (pp.  141–168), Thousand Oaks, CA: Sage. Drucker, A. (1981) ‘The influence of Western women on the anti-­footbinding movement 1840–1911’, Historical Reflections, Fall 1981: 179–199. Duggan, S. J. and McCreary, D. R. (2004) ‘Body image, eating disorders, and the drive for muscularity in gay and heterosexual men’, Journal of Homosexuality, 47(3–4): 45–58. Evans, A., Riley, S. and Shankar, A. (2010) ‘Technologies of sexiness: theorizing women’s engagement in the sexualization of culture’, Feminism & Psychology, 20(1): 114–131. Fairchild, K. and Rudman, L. A. (2008) ‘Everyday stranger harassment and women’s objectification’, Social Justice Research, 21(3): 338–357. Faul, M. and Umar, H. (2016) ‘Kill all the infidels and detonate bombs everywhere. Yes! I want you to kill, slaughter and abduct’, Africa, 31 December 2016. Available from: www.iol.co.za/news/africa/kill-­all-the-­infidels-and-­detonate-bombs-­everywhere-7303 066 (accessed 19 June 2017).

104   Jan Jordan Fest, J. C. (1974) Hitler, New York: Vintage Books. Fredrickson, B. L., and Roberts, T. (1997) ‘Objectification theory: toward understanding women’s lived experiences and mental health risks’, Psychology of Women Quarterly, 21: 173–206. Gardner, C. B. (1995) Passing by: Gender and Public Harassment, Berkeley, CA: University of California Press. Gervais, S. J. and Davidson, M. M. (2013) ‘Objectification among college women in the context of intimate partner violence’, Violence and Victims, 28(1): 36–49. Gill, R. (2007a) ‘Critical respect: the difficulties and dilemmas of agency and “choice” for feminism’, European Journal of Women’s Studies, 14(1): 69–80. Gill, R. (2007b) ‘Postfeminist media culture: elements of a sensibility’, European Journal of Women’s Studies, 10(2): 147–166. Hearn, J. (1998) The Violences of Men, London: Sage. Hunnicutt, G. (2009) ‘Varieties of patriarchy and violence against women: resurrecting “patriarchy” as a theoretical tool’, Violence Against Women, 15(5): 553–573. Hydén, M. (1995) ‘Verbal aggression as prehistory of woman battering’, Journal of Family Violence, 10(1): 55–71. Jordan, J. (2004) The Word of a Woman? Police, Rape and Belief. Houndmills, Basingstoke: Palgrave Macmillan. Kaplan, E. A. (1983) ‘Is the gaze male?’ in A. Snitow, C. Stansell and S. Thompson (eds), Powers of Desire: The Politics of Sexuality (pp. 309–327), New York: Monthly Review Press. Kelly, L. and Westmarland, N. (2016) ‘Naming and defining “domestic violence”: lessons from research with violent men’, Feminist Review, 112: 113–127. Langton, R. (2009) Sexual Solipsism: Philosophical Essays on Pornography and Objectification, Oxford, UK: Oxford University Press. Levy, H. (1966) Chinese Foot-­binding: The History of a Curious Erotic Custom, New York: Walton Rawls. Martin, D. (1976) Battered Wives, San Francisco, CA: Glide Publications. McRobbie, A. (2009) The Aftermath of Feminism: Gender, Culture and Social Change, London: Sage Publications Ltd. Messerschmidt, J. (1993) Masculinities and Crime: Critique and Reconceptualization of Theory, Lanham, MD: Roman and Littlefield. Moradi, B. and Huang, Y. P. (2008) ‘Objectification theory and psychology of women: a decade of advances and future directions’, Psychology of Women Quarterly, 32, 377–398. Mullaney, J. (2007) ‘Telling it like a man: masculinities and battering men’s accounts of their violence’, Men and Masculinities, 10(2): 222–247. Mulvey, L. (1975) ‘Visual pleasure and narrative cinema’, Screen, 16(3): 6–18. Mythen, G., Walklate, S. and Khan, F. (2009) ‘ “I’m a Muslim, but I’m not a terrorist”: victimization, risky identities and the performance of safety’, British Journal of Criminology, 49: 736–754. Nussbaum, M. C. (2010) ‘Objectification and Internet misogyny’, in S. Levmore and M.  C. Nussbaum (eds), The Offensive Internet: Speech, Privacy, and Reputation (pp. 68–90), Cambridge, MA: Harvard University Press. Pain, R. (2014) ‘Everyday terrorism: connecting domestic violence and global terrorism’, Progress in Human Geography, 38(4): 531–550. Saunders, D. G., Kurko, J. F., Barlow, K. and Crane, C.  E. (2011) ‘What attracts men who batter to their partners? An exploratory study’, Journal of Interpersonal Violence, 26(14): 2747–2763.

Surveying the womanscape   105 Stark, E. (2007) Coercive Control: How Men Entrap Women in Personal Life, New York: Oxford University Press. Styleblazer.com (10 May, 2012) 8 of the Most Shocking Celebrity Weight Gains (DAMN They Blew Up!). Available from: http://styleblazer.com/50301/8-of-­the-most-­shockingcelebrity-­weight-gains-­damn-they-­blew-up/ (accessed 31 July 2017). Totten, M. (2003) ‘Girlfriend abuse as a form of masculinity construction among violent, marginal youth’, Men and Masculinities, 6(1): 70–92. Tully, K. E. (2012) Objectification of Women and Intimate Partner Violence in Homosocial Groups. PhD Dissertation. San Francisco, CA: California School of Professional Psychology. Tylka, T. L. and Hill, M. S. (2004) ‘Objectification theory as it relates to disordered eating among college women’, Sex Roles, 51: 719–730. Walklate, S. (2008) ‘What is to be done about violence against women? Gender, violence, cosmopolitanism and the law’, British Journal of Criminology, 48: 39–54. Wetzel, L. and Ross, M. A. (1983) ‘Psychological and social ramifications of battering: observations leading to a counselling methodology for victims of domestic violence’, Journal of Counseling and Development, 61(7): 423–428. Wolf, N. (1991) The Beauty Myth, London: Vintage. Wood, J. T. (2004) ‘Monsters and victims: male felons’ accounts of intimate partner violence’, Journal of Social and Personal Relationships, 21(5): 555–576.

Part II

National security, difference and precarity

Chapter 6

Mapping gender violence narratives in the Northern Triangle of Central America Leda Lozier

On 3 March 2016, the world was stunned by the news of the assassination of Honduran indigenous and environmental activist Berta Isabel Cáceres Flores. According to several news reports and a recent report by the International Advisory Group of Experts (GAIPE),1 Cáceres, a member and co-­founder in 1993 of the Popular and Indigenous Organization of Honduras, saw the construction of the hydroelectric dam project in western Honduras as an abuse of the beliefs and human rights of the indigenous Lenca people. Cáceres had reported that, for her opposition to this project, she had received over 30 death threats. Pressured by the Inter-­American Commission on Human Rights to provide protective measures to Cáceres, the authorities in Honduras assigned her guards, a measure that proved inadequate. On the morning of 3 March, Cáceres was gunned down in her home. Today, almost two years after her death, and because the investigation has been surrounded by controversy over the involvement of state agents and powerful executives of the dam development project, the actual assassins have been prosecuted, but the murderers who ordered her death have not yet been tried.2 Cáceres’s death is just one of the many known cases of feminicide3 in the last decade in the Northern Triangle of Central America (comprising El Salvador, Guatemala and Honduras). Every day in this sub-­region of Central America women of all social classes and races suffer from physical, verbal, and structural violence in the form of poverty, or are killed in cruel ways. Their deaths are not being investigated properly. In fact, in many cases women’s deaths in the Northern Triangle countries are trivialised by being labelled as forms of violence that have become normalised, such as intimate partner violence (IPV) and organised crime violence. Exemplary here is the first police investigation report on Caceres’s killing. When this report came out, it suggested that her former lover murdered her (see Advisory Group of Experts 2017). With this assumption, not only was her murder reduced to a ‘crime of passion’4 and a private matter, effectively justifying its dismissal and the corresponding seriousness of the case by the authorities, but her reputation as a single mother, community leader and human rights defender was brought under scrutiny. As in Cáceres’s case in Honduras, in Guatemala and El Salvador women have been blamed for their own deaths. For instance, in 2005, in Guatemala,

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a young student named Claudina Isabel Velázquez was found dead. In this case not only did the police ignore Velázquez’s parents’ request to take action when they reported their daughter’s disappearance, but, as Victoria Sanford affirms, she was labelled a gang member and prostitute ‘because she had a piercing and because she was wearing sandals’ (2008: 12). Similar cases have been reported in El Salvador. Cecilia Menjívar and Shannon Drysdale Walsh point out in relation to Honduras, even if the government is not killing women directly, the failure of the state to investigate crimes against women amplifies and facilitates ‘multisided violence’ in the life of women, while promoting impunity (2017: 223): the same could be said of the other two Northern Triangle countries also. Blaming the victim is an effect of the state’s failure to investigate, and it produces a context that normalises violence and reproduces inequalities that undermine women’s right to live. Due to high rates of homicide, the Northern Triangle5 – also known as the ‘Northern Triangle of Death’6 – can be characterised as a place of insecurity where there seems to be a complete disregard for life, especially for women. In 2015, the World Health Organization declared that 10 intentional homicides per 100,000 inhabitants is generally considered to be of epidemic proportions (see UNDP 2013: 1). The murder rate of women in El Salvador during 2007 to 2012 was 14.4 murders per 100,000; in those same years Honduras had the second-­highest rate of feminicide worldwide, with 10.9 deaths per 100,000, and Guatemala had the fourth highest rate with 9.2 murders per 100,000 during the same time period (Geneva Declaration Secretariat 2015: 93). It is evident that the countries of the Northern Triangle are facing an epidemic proportion of violence against women. What makes this epidemic more dangerous is that of the crimes committed against women in Guatemala and Honduras, only 2 per cent of the cases in each country lead to a prosecution, leaving the rest unsolved (Geneva Declaration Secretariat 2015). Why does a state of impunity prevail in the geographical space of the Northern Triangle, and what are the social-­historic events that constitute such a misogynist culture of gendered violence? In this chapter these questions are key because while these inquiries have been addressed extensively from political, sociological and anthropological perspectives, as well as by non-­governmental organisations and several feminist groups, they have not yet been explored from a literary and cultural studies perspective. The representation of violence in the cultural productions of Central America has always been present. Specifically, during the 1980s – years marked by intense confrontation in Guatemala, El Salvador and Nicaragua – state violence against women was central in the works of Manlio Argueta, Claribel Alegría, Rigoberta Menchú and Giaconda Belly, and many others. More recently, however, while several authors, mostly female, from the Northern Triangle have been producing cultural materials about the different experiences of gender violence, further exploration is needed, particularly to investigate this material’s reflection within the current social context in which the lines between political and criminal violence are blurred.

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The aim of this chapter is to analyse four specific works from writers Maria Eugenia Ramos (Honduras) and Claudia Hernández (El Salvador), and from poet and performer Regina José Galindo7 (Guatemala). These authors are not part of a collective, nor are they contemporaries, but their work depicts shared concern with patriarchal discourses of inequality and state impunity in each of the three countries of the Northern Triangle of Central America that have enabled violence in the everyday lives of women. I consider that the works of Ramos, Hernández and Galindo, via different narrative strategies and aesthetics, illuminate the environment of insecurity facing women in the Northern Triangle: I argue this is usefully understood through Judith Butler’s concept of a ‘differential distribution of precarity’ (2015: 33). Butler’s conceptualisation reveals how political, systematic and structural forms of violence make certain bodies vulnerable, and render the existence of these subjects (who include women, people of colour, and lesbian, gay, bisexual, transgender and intersex people) unworthy of human value and protection. For Butler, this dehumanisation intensifies the contexts of violence where there is a higher restriction on safe public spaces. She further argues that this dehumanisation is shaped by gender norms and how they determine whose lives are worthy. The works under analysis in this chapter are the short stories ‘Sunday night’ (2000) (Domingo por la noche,) by Ramos and ‘Acts of a good citizen (part 1)’ (2007) (Hechos de un buen ciudadano (parte 1)) by Hernández; and The pain that lies within a handkerchief (1999) (El dolor en un pañuelo) and We lose nothing in being born (2000) (No perdemos nada con nacer) by Galindo. Examining representations of violence against the female body in these works through Butler’s conceptualisation allows me to explore the consequences of seeing women as politically, discursively and socially inferior. These works depict how women in Northern Triangle countries live in a precarious state of terror, are counted as waste, and are subject to insecurity and multiple forms of violence in private and in public, in war and in peace.

‘Sunday night’ ‘Sunday night’,8 by Maria Eugenia Ramos (2000), is a short story in which three women are confronted by military acts of violence. The story has an omniscient narrator who describes the wet and quiet streets of a Sunday night after a protest and during an implemented curfew. The narrator’s descriptions of the street where there was no one but the remains of ‘poster signs, barricades made with chairs and barrels and nails to stop the military trucks’ (28) stops and mingles with the interior monologue of an unnamed woman walking at a fast pace, worried about the police patrol car that she hears. Close to this woman there are a humbly dressed mother and daughter running because of the state-­imposed curfew. They carry with them a poster that reads ‘the cost of living expenses is unbearable’ and ‘No more violence against women’9 (137). The mother and daughter are stopped by the police/military.10 When the two policemen in the

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car see the poster they see it as ‘subversive literature’ and verbally abuse them, calling them guerrilla whores from El Salvador and whores of the Farabundo.11 The policemen also threaten to sexually assault the women and outline how they will assault them. Meanwhile, the other woman, who through her inner monologue and clothing, is positioned as from a higher social class, reveals that she fears her husband will discover her wandering the streets. She reflects on her discontent at his treatment of her as a servant. When this woman nears the other two women and the policemen, all three are asked to present their documentation. The two women present their tattered IDs and are again verbally abused by the policemen who question their nationality. When the other woman sees this police mistreatment she informs them that she is ‘the wife of Doctor Octavio Diaz’ but never states her own name (32). Although initially suspicious, once the police realise that her husband is in fact the doctor who collaborates with them in keeping tortured prisoners alive, their attitude changes. Because of her appearance the police call her ‘señora’ (a sign of respect); and because of their admiration for her husband they offer to drive her home. While she gets into the cab of the police truck, the other two women are handcuffed and thrown into the open air bed at the back. Upon arriving at her house, Octavio’s wife intercedes on behalf of the other two women saying that they work for her. Because the policemen trust Dr Octavio Diaz, they accede to his wife’s request to free the two women. The mother and daughter are liberated but Octavio’s wife must go home where presumably her husband waits for her to serve him. Ramos here depicts militarised violence justified as ‘protecting the nation’ by othering those who may attempt to disrupt the status quo. Ramos’s representation of state acts of violence against the three women reveals gender violence in Honduras as an extension of militarised state oppression. There is systematic authorisation of violent language that fosters a culture of violence in which the treatment of women as inferior beings is natural and accepted in the ‘social order of things’ (Menjívar 2011: 235). Particularly, this representation reflects how the modus operandi used by military forces underpins current social contexts of political and gendered violence in Honduras. During the late Cold War era (1980–1993), Honduras implemented a National Security Doctrine marked by political intolerance. People were disappeared, tortured and incarcerated by the Honduran police and military (Menjívar and Walsh 2017: 221). Regardless of country of origin,12 women were subjected to physical and verbal violence. Since 2009, in the current Honduran post-­coup13 era, such violence has re-­surfaced. Testimonies of Honduran women protesters in the resistance movement against the 2009 coup, reveal they have been chased, hit with batons on their backs and buttocks, and verbally assaulted by security forces, who scream comments such as ‘whores’ and ‘go back to your homes’ (Thompson 2009). These testimonies of women echo Ramos’s demonstration that public and political violence in Honduras has always existed and that one of its effects is the normalisation of its gender-­based violence. During

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protests by the resistance movement in Honduras for example, the aggression demonstrated towards women was more extreme. While women reported that police hit them on their buttocks with their batons there were never reports of men being treated this way (Thompson 2009). In this sense, Ramos’s story functions as a mirror that reminds us that gendered forms of political violence run parallel, in Butler’s terms, to restrictions on women’s access to public space. In ‘Sunday night’, what best illustrates this idea is the fact that the lives and dignity of three women from two different backgrounds are submitted to violence by police because they are in the space where a protest to demand the human right of ‘no more violence against women’ has taken place. Their presence in this space of resistance is met by violence from the police, in verbal abuse of the mother and daughter, and by forcing women to return to their homes and traditional gender roles, as in the case of Octavio’s wife. As portrayed in the story, the state that is supposed to protect human and women’s rights instead perpetuates violence against them. Similarly, Ramos’s story highlights how vulnerability to acts of violence in public space intersects with insecurity and the most common and even internalised form of violence against women – IPV. For example, Octavio’s wife is a frightened observer of the verbal and sexual harassment the other women experience, but she equally fears her husband’s arrival. This woman’s anxiety interlinks her experience of terror in her house with what she observes the other two women experiencing on the street. Ramos problematises even more the linkage of political violence and IPV when Octavios’ wife embodies her husband’s image to protect herself from the act of public violence. This is particularly noticed when Octavio’s wife observes in her inner monologue: … it’s the police patrol but they will not do anything to me I am doctor Octavio’s wife, and those women, who are they? Poor women if they do not have their ID they are going to take them, they are going to (136) When she claims that ‘they will not do anything to me I am doctor Octavio’s wife’, she highlights her vulnerability as an instrument of sexual politics and gender norms. As Butler observes, gender norms ‘have everything to do with how and in what way we can appear in public space, how and in what way the public and private are distinguished, and how that distinction is instrumental in the service of sexual politics’ (2015: 35). Ramos’s representation of Octavio’s wife embracing the paternalistic power of her husband as her ‘identity’ depicts how this woman seems to enter into the right ‘order of things’ according to the dominant sexual political discourse. Her unequal position in terms of gender is clear as she must identify as belonging to her husband to counter the power of the police on the street. In Ramos’s short story, when this woman seeks value in the eyes of the police and is treated more favourably than the other two, she is actually negotiating

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the differential distribution of precarity that dispossesses her of individual subjectivity but that at the same time allows her to set free the other two women. This woman whose name is never revealed is recognised only as Dr Octavio’s wife. Her existence and differential exposure to violence is mediated through her husband. This moment of ‘recognition’ of Octavio’s wife reveals the tentacles of the patriarchal system in the form of gender discrimination and gender violence inside and outside the home. When this woman speaks her husband’s name, allowing her to be recognised and ‘forgiven’ for her public ‘transgression’, Ramos illuminates how gender power relations work. Dr Octavio’s name becomes a representation of the surveillance that structurally and symbolically governs women’s lives. In assisting torture by the police, Octavio himself becomes a torturer, supporting a culture of violence and impunity. It is precisely this culture of impunity in relation to crimes against women that at the end of Ramos’s story leaves us wondering how many women in Honduras live as does the character of Octavio’s wife. How many of them worry, just like Octavio’s wife, about what will happen to them when they get home.

‘Acts of a good citizen (part 1)’ 14 While Ramos leaves us wondering whether the verbal threats of violence against the women on the street will materialise as actual violence in the house of Octavio’s wife, Salvadoran writer Claudia Hernández overtly depicts violence inside the home. At the beginning of her short story, ‘Acts of a good citizen (part 1)’ (2007), the tortured and mutilated body of a woman lies in the kitchen of the narrator’s house. It is soon revealed that this dead woman is unknown to the narrator, whose name and gender is never revealed. When the narrator discovers the dead body he/she decides to look for the family of the victim, and posts an advertisement in the classified section of the newspaper that reads: I am looking for the owner of a young girl’s corpse with lumpy flesh, bulky knees and a face that seems to be called Lívida. It was abandoned in my kitchen close to the refrigerator, wounded and almost empty of blood. More Information at 271012. (16) Surprising to the readers, but not the narrator, several people respond to the advertisement in the most natural way, asking if the narrator has found the bodies of their disappeared loved ones. For instance, one of the calls is from a couple looking for their daughter, ‘also named’ Lívida, but they do not believe it is her body because ‘she should be alive’ (18). Another call comes from someone who was moved and wanted to congratulate the narrator for the good deed. In addition, the narrator receives a call from a representative of the public health office who wants to make sure the narrator has ‘preserved’ the body in order to

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avoid spreading disease in the neighbourhood. After receiving these calls, the narrator decides to contact one of the callers and convince him that even though ‘Lívida’ is not the person he is looking for, he could alleviate his family’s pain for their loss by claiming the woman’s mutilated body. This would allow both of them do a good deed – to ‘give a burial to that girl’ (19). At the end of the story, the body of the woman is buried, but what happened to her and how she got to the narrator’s house is never revealed. What we know is that the perpetrators of her murder and the responsible of the disappeared or murdered siblings of the callers go unpunished. In recent years, the work of Hernández has received wide critical acclaim for her innovative aesthetic and thematic treatment of violence. Ignacio Samiento has called Hernández’s work a ‘narrative of precarity’ for her portrayal of the most dehumanising forms of violence suffered by people in El Salvador resulting from the previous war and the introduction of neoliberalism in Central America (Sarmiento 2016: 1–26). Alexandra Ortiz-­Wallner (2013) has pointed out that Hernández’s narrative effectively portrays violence while maintaining a linguistic and metaphorical balance that oscillates between moderation and conciseness. I agree with Ortiz’s and Sarmiento’s observations, but also recognise that while gender violence in Hernández’s narratives does not always appear as a central or explicit theme it is still part of her narrative. I argue that in the conciseness of her work Hernández is able to outline stories of violence against the female body and link them to the broader issue of violence, particularly in El Salvador. For instance, the narration of the tortured female body in ‘Acts of a good citizen (part 1)’ reveals the thread that connects different stories of violence and disappearances. The story opens with the narrator stating: There was a corpse when I arrived. In the kitchen. Of a woman. Lacerated. And it was fresh: the smell of blood was still mineral. The face was unknown to me, but the body reminded me of my mother’s bony knees, they were outstanding as if they did not belong to her, as if they had been lent to her by a woman who was much taller and thinner than she. (17) The fragmentation of the body evokes a crime scene with the dead woman’s body representing multiple other murdered and disappeared women, including the narrator’s mother. This scene establishes the tone of the story in which death and violence have invaded the privacy of someone’s home, and the woman’s violated body best represents this ‘invasion’. The description of the ‘perfectly clean [crime] scene’ in Hernández’s story reflects a common form of violence in El Salvador. This image is pivotal, particularly to understanding the danger for women within a new order of what  Rita Segato (2014) calls non-­conventional wars and power relations. According to Segato, during wars and armed conflicts women’s bodies are

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treated as territorial possessions between two conflicting sides. However, she affirms that now there are new forms of violence against women’s bodies which are used to transmit the idea that there are no limits for the execution of cruel acts (345). In Hernández’s story, a mutilated woman’s body has become a method to send a message to a collective. The message conveyed by the body of the dead woman seems to be that violence is carried out everywhere and women just like other vulnerable citizens are the target. When the unknown woman’s dead body appears ‘randomly’ in the house of the narrator, the home is converted into a crime scene where a woman’s body is treated not as a victim of violence but as waste. This is clear not only in the fact that the narrator calls her Lívida, an ironic name that carries the meaning of being lifeless, but because of the way the narrator handles her body. It is important to note that in stable democratic and peaceful states, it would be reasonable to file a complaint or notify the authorities of any death. However, as depicted in Hernández’s story, in El Salvador as well as in Guatemala and Honduras this is not always the case, particularly as over 40 per cent of cases filed are never investigated (Menjívar 2011: 284). When the narrator decides to take action, and states ‘as any good citizen would have done, I did not wait for any message to appear on the radio or on television, but I did print one in the newspaper’ (Hernández 2007: 17), Hernández shows a population critical of the legal system’s approach to investigate violent deaths. When the dehumanising language that the narrator uses in the ad – for example, when the narrator says ‘I am looking for the owner’ – is frequently used in the media15 the victim is framed as an object. This reveals that when the investigation of a crime is left to the ‘good citizens will’, it is because the public channels that are supposed to protect citizens exist only symbolically. Butler’s illumination of how states that are supposed to protect citizens but fail to do so, put these citizens at risk of living a life of precarity, subjected to insecurity and violence is important. In the case of El Salvador this failure of the state is evident in the dramatic increase in violence, particularly against women, during the years of peace. Between 2000 and 2006, reported violence against women in El Salvador increased by 111 per cent, almost three times the increase in the homicide rate for men, which rose by only 40 per cent16 (Carcedo 2010: 40–42). Hernández’s critical representation of insecurity and the lack of action against violence and death is not built on a weak foundation. The data show a great difference between the increases in the numbers of women and men killed, and a report stated that there remains a large gap in data collection regarding the epidemic levels of violence against women in all Northern Triangle countries. This report suggests that there are still many cases of women’s death, sexual assault and physical and psychological violence that are not properly documented (Geneva Declaration Secretariat 2015: 88). Hernández’s writing highlights that authorities are unreliable, but also raises an important question:

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who is responsible for reporting and investigating acts of violence? Who documents the dozens of monthly murders? Beyond giving answers to this questions when in ‘Acts of a good citizen (part 1)’ the narrator decides to place an advertisement in the newspaper about the woman’s mutilated body instead of contacting the police, Hernández shows that the responsibility seems to lie now with each individual moral decision to make visible the issue of violence and insecurity in their social context. The pain that lies within a handkerchief and We lose nothing in being born Just as Hernández uses the newspaper to portray the absence of a protective state, one of Regina José Galindo’s performances uses newspaper headlines to question and resist the continued inattention to the violence and insecurity facing women in Guatemala.17 In 1999, three years since the Peace Accords between the government and the guerrillas in Guatemala were signed, Galindo, a native Guatemalan poet, performer and eventual winner of the Golden Lion award at the Venice Biennale in 2005, presented the performance The pain that lies within a handkerchief 18 (1999). This was one of Galindo’s first performances, alongside The sky cries a lot (El cielo llora tanto) and I will scream it to the wind (Lo voy a gritar al viento), and form part of a new era in art for post-­war Guatemala (see Fiengo 2010). These performances carried Galindo’s emerging trademark: a strong interest in depicting issues related to memory, gender, human rights abuses and power relations, particularly in Guatemala. Several studies have suggested that Guatemala’s epidemic levels of violence against women including torture, rape, and murder are connected to the memory of the past armed conflict. These high rates are due not only to agents of the state, including members of the Guatemalan military and death squads, using sexual violence in conjunction with other gendered practices as tactics of war, but also because the majority of military persons who committed those crimes were never accused (Chazaro, Casey and Ruhl 2010: 100). Moreover, Guatemala’s current police force comprises many of the same men who patrolled the country during the war years. Beyond that, there is persistent discrimination against women in criminal codes. For instance, while there are laws against domestic violence, there are no criminal penalties for abusers, making the law essentially inactive and impeding the ability to prosecute abusers (Chazaro, Casey and Ruhl 2010: 102). Galindo is a critical artist who recognises these connections and knows about the precarity in which many women live and die. Particularly, Galindo recognises that the scars of violence from past armed conflicts are embedded in the current violent culture against women in Guatemala. Additionally, Galindo knows the importance of creating counter-­hegemonic discourses that challenge the traditional perception of women as vulnerable subjects. In The pain that lies within a handkerchief she uses depictions of violence against women drawn from newspaper headlines. While the spectator is used to

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reading trivialised descriptions of violence against women in the newspapers, in her performance Galindo places her blindfolded and naked body tied to a bed in a sort of vertical crucifixion position while local newspaper headlines are projected onto her body, from her neck down to her genitals. The newspaper reports highlight the escalation of violence against women in Guatemala (see Figure 6.1). By displaying the images across her exposed body, Galindo effectively creates her own sort of ‘news headline’, where there is a connection between the words and her body. The news about the ‘30 rapes in two months’, the history of ‘El Machismo’, the many stories of sex victims, including the story of a man who ‘killed his little daughter the day she was born’, among others, are no longer impersonal: Galindo’s bound and blindfolded body represent them. With this performance Galindo demonstrates that women’s lives are in danger and that the multiple forms of gender violence such as IPV and rape, and the lack of punishment for perpetrators, continue to be a powerful tool used to terrorise women – and that this must be acknowledged as a social problem. Galindo’s work resonates with Jean Franco’s observation that the perception of women as an object of domination vulnerable to rape perpetrated during wartime persists even when there has been a transition to peacetime (2007: 80) In The pain that lies within a handkerchief, Galindo raises awareness of this ‘continuum of violence’ against women that was intensified during the war in Guatemala and continues into the years of peace. In 1999, just a few years after the war in Guatemala, there was an increase in the number of killings and rapes of women which has since been linked to the neoliberal policies supporting free market and foreign investment in Guatemala (Weissman 2010: 228–229). In urban areas, the discovery of mutilated bodies became an everyday event, paralleling the murder of women in Ciudad Juárez, Mexico,19 one of the most dangerous cities for women. The headlines that Galindo used in her performance reflect this new epidemic of the killing of women that is led by other forms of violence, such as violence from gang and drug crime, and further exposes them to the public. Furthermore, when Galindo places her body in a public space as a prompt for the spectator to remember and think about acts of violence against women, she is creating an alliance that starts with her own body and draws in the observer. Sometimes, this affective alliance is with observers who live in the same spaces of violence where the corpses of the victims of acts of violence are left. This idea is captured in the performance We lose nothing in being born (2000). In this performance, Galindo no longer provides an image of the body with headlines as she did with The pain that lies within a handkerchief. Instead, she re-­ enacts a scene that, since 1999, has become regular, not only in Guatemala but also across the Northern Triangle countries: the image of a dispossessed and disposable body of a naked woman, lying in a foetus-­like position, wrapped in a plastic bag and left at a public rubbish dump (Figures 6.2a–b). When Galindo’s performance takes place in the rubbish tip, the space where in Guatemala City

Figure 6.1 Regina José Galindo, The pain that lies within a handkerchief (El dolor en un peñuelo), 1999, Guatemala, stampa lambda su forex, 150 × 100 cm. Source: photo credit Marvin Olivares. Performances can be found at www.reginajose galindo.com.

Figure 6.2a Regina José Galindo, We lose nothing in being born (No Perdemos nada con nacer), 2000, Guatemala, stampa lambda su forex, 70 × 100 cm. Source: photo credit Belia de Vico copia. Performances can be found at www.reginajose galindo.com.

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Figure 6.2b Regina José Galindo, We lose nothing in being born (No Perdemos nada con nacer), 2000, Guatemala, stampa lambda su forex, 180 × 125 cm. Source: photo credit Belia de Vico. Performances can be found at www.reginajose galindo.com.

some of society’s most vulnerable and precarious humans work or live, it is reasonable to wonder, what does it tell us about the culture of violence against women in Guatemala? Here, I would like to point to Julia Kristeva’s theory of abjection and the imaginary border between a body that is abjecting and one that is abjected. According to Kristeva: if garbage means the other side of the border, where I am not and which permits me to be, the corpse, the most sickening of wastes, is a border that has encroached upon everything. It is not me anymore (moi) who expels, ‘I’ is expelled. (1982: 4) Kristeva’s observation that the corpse is the most symbolic form of abjection resonates in Galindo’s artistic and political choice of placing her living but sedated and naked body in a plastic garbage bag as the ‘moi’, the subject that ‘expels’. With this political action Galindo enacts the brutal epidemic and generates a discourse of resistance to the positioning of the woman’s body as waste.

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While Galindo’s body seems to be subjected and ‘disciplined’ through her re-­ enactment of feminicides, the contrary is true. Galindo planned her performance, and in doing so, as she affirms ‘even if I am sedated or whatever, I have the power to claim the public space to demand and resist’ (Galindo 2008). This act of resistance aims to expose the audience at the landfill to their own social dispossession – not with the intention of denigrating it, but with the aim of claiming rights and justice for their lives and the lives of dozens of women found dead in landfills in Guatemala City and are not reported. When the landfill is ‘invaded’ by the corpses of women, the precarity experienced by the individuals who live there becomes hard to ignore. In other words, with Galindo’s performance the naturalisation of violence breaks the scab that people create in order to not be affected by their own reality of precarity. By shocking its audience locally and internationally Galindo makes visible the unacceptable naturalisation of violence against women in the Northern Triangle.

Conclusion The diverse works of these authors and artists across the Northern Triangle work to represent and confront gender violence in this geopolitical space. The themes of gender violence and precarity presented in this chapter are not limited to these works, but rather offer an introduction to these concerns in the works of many other authors from the Northern Triangle. This is particularly important because as long as the intersections among political, social, economic exclusion, and gendered inequality exist in the Northern Triangle, women’s lives continue to be at increased risk of violence. The visibility offered by these cultural productions illuminates the social context of extensive gender violence in this region. As the representations of violence in the works of Ramos, Hernández and Galindo demonstrate, the differential distribution of precarity that has enabled violence against women in the Northern Triangle cannot be seen in isolation. It is necessary to look at the past history of militarization and the subsequent creation of states of impunity in relation to crimes against women. These works encourage exploration of how the modus operandi of violence from the past resurfaces in the current context of ‘violent peace’ in the Northern Triangle and limits women’s human rights to live in a space free of gender violence.

Notes   1 Group of five international human rights, humanitarian, and criminal law experts that was formed to pursue an independent and partial investigation on Cáceres’s murder.   2 See ‘Dam violence: the plan that killed Berta Cáceres’, available from: https://justas sociates.org/en/resources/executive-­summary-dam-­violence-plan-­killed-berta-­caceres.   3 Amid the debate about the term feminicide/femicide in Latin America and the fact that the term feminicide has not been stipulated in the Honduran Law, following the formulations of Lagarde (2010) and Victoria Sanford (2008), I prefer to use the term

Mapping gender violence narratives   123 feminicide. Lagarde and Sanford take into account the role the state plays in these killings of women, either through the lack of action in creating a preventive response mechanism, impunity to the murderers, or silence making it complicit in the murders, as in the case of military repression.   4 According to Menjívar and Walsh, in the Honduras justice system the murder of women, in many cases from domestic violence, is labelled as a ‘crime of passion’ and is considered a ‘simple consequence of romance’. This language to refer to the murder of women in the legal system is used to dismiss the case as ‘simple homicide that carries a lighter sentence’ (2017: 223).   5 The term Northern Triangle is not new. Under the Treaty of Ocotepeque signed on 12 May 1992 in Ocotepeque (Honduras), El Salvador, Guatemala and Honduras became a geo-­economic entity. The unification of the three countries was aimed at improving the economic and political situation that had been adversely affected by the internal conflicts that were coming to an end in 1992, and these developments were further supported by the signing of the Peace Accords in El Salvador and Guatemala in 1996.   6 Because of the increased levels of violence in the Northern Triangle, international media has paid more attention to this sub-­region of Central America, popularising the use of terms that describe this area as a place synonymous with death.   7 All of Regina Galindo’s performances can be found at www.reginajosegalindo.com.   8 In 2015, Ramos’s book of short stories Una cierta nostalgia, in which ‘Domingo por la noche’ was published, was recognised as one of the best kept secrets of Latin Amer­ ican literature by the FILGUA, the Guadalajara International Book Fair.   9 All translations of the primary texts are mine. 10 During the armed conflict in Central American countries, in order to oppress the population, the governments had militarised police forces. In the Northern Triangle over the past five years or so, in order to stop the wave of violence, with help from the US through the foreign assistance program the Central America Regional Security Initiative, the governments under the ‘Mano dura’ (Iron Fist) intervention again established a militarised police force which, instead of addressing the issues of violence, has contributed to the increased insecurity and human rights abuses faced by social protest campaigners (Geneva Declaration Secretariat 2015: 96). 11 The name Farabundo here refers to the Farabundo Martí National Liberation Front, the left-­wing guerrilla group that fought El Salvador’s US-­backed armed forces during the 1980s. 12 See Jocelyn Viterna’s (2013) work on Salvadorean refugee women and their experiences with the Honduran military. 13 In 2009 the democratically elected president Manuel Zelaya was forcefully removed from office by the Honduran military. See Thompson (2009): www.womensmedia center.com/news-­features/military-­coup-reverses-­honduran-womens-­gains-in-­humanrights. 14 This short story is the first of a two-­part story revealing the violence and agony surrounding the disappearance of people and reappearance of their dead bodies of man and women in the houses of people not related to the deceased person. Since the focus of this chapter is on the representation of gendered violence, my attention is placed on ‘Acts of a good citizen (part 1)’ and the role the mutilated female body plays in this story. 15 Carcedo 2010, p. 85. 16 In Guatemala the situation was similar, with an increase of 144 per cent in the number of deaths of women in contrast to 68 per cent for men, in the period from 1995 to 2004. Meanwhile, between 2002 and 2007, Honduras saw an increase in the number of female victims of 166 per cent, compared to a 40 per cent increase among men (Carcedo 2010: 40–42).

124   Leda Lozier 17 Although the work of Galindo primarily focuses on the issues related to violence against women in Guatemala, the versatility of her work and the universality of violence against women goes beyond Guatemala’s borders. Her work has been presented in both America and Europe. 18 In 1997 Galindo published a poem also named The pain that lies within a handkerchief. For the performance she used the poem attaching it to the door of the room where the performance took place. 19 In Global Economics and Their Progenies: Theorizing Feminicide in Context, Deborah M. Weissman creates a parallel between the murders in Ciudad Juarez and Guatemala. She argues that one of the main parallels is the economic insecurity and the effects of the expansion of neoliberal privatisation and foreign investment in Guatemala, which has seen women ‘as in Ciudad Juarez as the ideal maquila workers’. Weissman affirms that once employed, Guatemalan women are subjected to a range of oppressive conditions including underpayment, and sexual, psychological and verbal abuse (2010: 228–229).

References Advisory Group of Experts (GAIPE) (2017) ‘Dam violence: the plan that killed Berta Cáceres’, November. Available from: https://justassociates.org/en/resources/executive-­ summary-dam-­violence-plan-­killed-berta-­caceres (accessed 15 November 2017). Butler, J. (2015) Notes Toward a Performative Theory of Assembly, Cambridge, MA; London, England: Harvard University Press. Carcedo, A. (2010) No olvidamos ni aceptamos: femicidio en Centroamérica 2000 2006. 1st  edn. San José de Costa Rica: Associacion Centro de Información y Accion (CEFEMINA). Available from: http://planovicr.org/caja-­herramientas/no-­olvidamosni-­aceptamos-femicidio-­en centroamerica-­2000–2006–0 (accessed 1 August 2017) Chazaro, Casey and Ruhl, J. (2010) ‘Getting away with murder’, in Terrorizing Women: Feminicides in the Americas (pp. 93–115), North Carolina: Duke University. Fiengo, Villena Sergio (2010) ‘Regina Galindo: el arte de arañar el caos del mundo El performance como acto de Resistencia’ in Revista Centroamericana de Ciencias Sociales, Vol, VII, N.1. Franco, J. (2007) ‘Rape: a weapon of war’, in Social Text. North Carolina: Duke University Press. Galindo, R. J. (2000) No perdemos nada con nacer. Guatemala City. Galindo, R. J. (1999) El dolor de un pañuelo. Guatemala City. Galindo R. J. (2008) ‘Sangre, sudor y lágrimas’. Interview by Tarifeño, Leonardo., La Nación, 16 August. Available from: www.lanacion.com.ar/1039074-sangre-­sudor-y-­ lagrimas (accessed 20 September 2017). Geneva Declaration Secretariat (2015) ‘Lethal violence against women and girls’, in Global Burden of Armed Violence 2015: Every Body Counts (pp. 87–120), Cambridge: Cambridge University Press (Global Burden of Armed Violence), doi: 10.1017/ CBO9781107707108.006. Available at: www.genevadeclaration.org/measurability/burden-­of-armed-­violence/global-­burden-of-­armed-violence-­2015.html (accessed 16 November 2017). Hernández, C. (2007) ‘Hechos de un buen ciudadano, parte 1’. De fronteras Guatemala: Editorial Piedra Santa, pp. 17–19. Kristeva, J. (1982) Powers of Horror: An Essay on Abjection. Translated by Leon S. Roudiez, New York: Columbia University Press.

Mapping gender violence narratives   125 Lagarde y de los Rios, M. (2010) ‘Feminist keys for understanding feminicides theoretical, political and legal construction’ in R. L. Fregoso and C. Bejarano (eds) Terrorizing Women, Feminicides in the Americas (pp.  xi–xxv). North Carolina: Duke University Press. Menjívar, C. (2011) Enduring Violence: Ladina Women’s Lives in Guatemala. Berkeley and Los Angeles, CA: University of California Press. Menjívar, C. and Walsh, S. D. (2017) ‘The architecture of feminicide: the state, inequalities, and everyday gender violence in Honduras’, Latin American Research Review, 52(2): 221–240. Available from: https://doi.org/10.25222/larr.73 (accessed 1 September 2017). Ortiz-­Wallner, A. (2013) ‘Claudia Hernández – Por una poética de la prosa en tiempos Violentos’, Lejana. revista crítica de narrativa breve. Volume nº  6 p.  10. Available at: http://ojs.elte.hu/index.php/lejana/article/view/65 (accessed 30 May 2017). Ramos, M. E. (2000) ‘Domingo por la noche’, in Una cierta nostalgia. Tegucigalpa, Honduras: Guardabarranco. Sanford, V. (2008) Guatemala del genocidio al feminicido: Cuadernos del presente imperfecto, Guatemala: F&G Editores. Sarmiento, I. (2016) ‘Claudia Hernández y la escritura de la precariedad’, Boletín AFEHC 69. Abril-­Junio. Available from: www.academia.edu/27572399/Claudia_Hernández_y_ la_escritura_de_la_precariedad (accessed 30 May 2017). Segato, R. L. (2014) ‘Nuevas formas de la Guerra y el cuerpo de las mujeres’, Revista Sociedade e Estado, 29(2) May/Agosto: 341–371. Thompson, M. (2009) WMC news and features. Available from: www.womensmedia center.com/news-­features/military-­coup-reverses-­honduran-womens-­gains-in-­humanrights (accessed 15 October 2017). United Nations Development Programme (UNDP) Regional Human Development Report (2013–14). Citizen Security with a Human Face – Evidence and Proposals for Latin America, 2013. Available from: http://hdr.undp.org/sites/default/files/citizen_security_ with_a_human_face_-executivesummary.pdf (accessed 30 November 2017). Viterna, J. (2013) Women in War: The Micro-­processes of Mobilization in El Salvador, New York: Oxford University Press Weissman, D. M. (2010) ‘Global economics and their progenies: theorizing feminicide in context’, in R. L. Fregoso and C. Bejarano (eds) Terrorizing Women, Feminicides in the Americas (pp. 225–242). North Carolina: Duke University Press.

Chapter 7

Temporary migration and family violence The borders of coercive control Marie Segrave

Introduction There is a renewed interest in and recognition of the specificity of family violence for various populations, including, for example, immigrant and refugee women,1 members of the LGBTIQ (Lesbian, Gay, Bi-­Sexual, Transgender, Intersex and Queer) community, and people with disabilities. This is the case in Australia, where both the research and policy direction is currently being dedicated to embracing diversity in the response to family violence.2 In light of this, there is greater awareness of the specificity of the social, cultural and structural barriers that impact women experiencing family violence differentially. As a consequence, there is renewed recognition3 that how we understand the impact of and appropriate responses to family violence requires looking beyond an exclusive focus on gender to include other sites of inequality (see Crenshaw 1991). Drawing on Crenshaw’s conceptualisation of intersectionality, which identifies structural intersectionality as part of the broader production of inequality (linked to political and representational intersectionality), this chapter focuses on migration status, specifically the status of temporary non-­ citizen, as a site of inequality that compounds gender-­based violence in particular and often obfuscated ways. The chapter argues, extending upon Stark’s (2007) conceptualisation of coercive control, that migration law, regulations and policy function to give migration status precedence over and above the status of victim-­survivor of family violence. We therefore need to look beyond individualised conceptualisations and understandings of coercive control to recognise that the state is, in fact, complicit in enabling and sustaining gendered violence. In this chapter, two examples are drawn from a recent study conducted in Victoria, Australia, to identify the ways in which the state’s exercise of coercive control operates at once to restrict and limit women, and in so doing empowers perpetrators, at a time when the political rhetoric at both the state and national level reflects a momentum to push against the historical acceptance of gender-­based violence and to better support victim-­survivors, while also ensuring that perpetrators are held to account (see, for example, Prime Minister of Australia 2016). To illustrate this, the chapter outlines the limits placed on

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the protections available to temporary migrants who experience family violence, and then considers two examples to bring to the fore the specificity of temporary migration status and the interconnectedness of many forms of family violence that are exerted to control women, regardless of their citizenship status. The examples focus on the utilisation of children as leverage, and the impact of threats pertaining to physical safety and harm (including financial and reputational harm) on women and their families. In many ways, these two examples have much in common with family violence situations experienced by citizens: children are frequently used as leverage to control women, and significant threats can be made to harm other family members and/or women’s reputations in specific and potentially devastating ways, regardless of their citizenship status. However, this chapter argues that, first, these situations are unique or distinct from citizen experiences due to the transnational element that is present, and that, as a result of non-­citizenship – specifically temporary migration status – not only are women subject to threats but also these threats can be reinforced and enabled by the operation of the migration regime. We therefore conclude that vulnerability in the context of family violence as a result of non-­citizenship is in part attributable to the state, and argue that we should look to the ways in which migration status is a further component of the complexity of gendered violence.

The intersection of migration and family violence: what is known There is a significant body of research that highlights that immigrant and refugee women are vulnerable to family violence in specific and complex ways. It is widely acknowledged that it is not possible to accurately identify the prevalence of family violence among immigrant and refugee communities, not least because of definitional and measurement issues, such as the determination regarding at what point an individual is deemed to be a member (or not) of a culturally and linguistically diverse (CALD), immigrant and refugee community (see Victorian Royal Commission into Family Violence [VRCFV] 2016: 101; see also Lum On et al. 2016 for a discussion of the complexities of measuring prevalence among overseas-­born women). The issue, however, of prevalence is not the primary driver of recognition of the need to tailor responses to this community. Rather, it is the broader knowledge in Australia and internationally (see also Stark 2007: 265–266) that family violence within this community has specific and distinct manifestations and poses critical challenges in relation to intervention and prevention of future violence. In their overview of the extant literature in this area, Vaughan et al. (2015) note that much of the research focuses on cultural issues pertaining to gender roles, the expectation and import placed upon marriage as an institution, and other cultural or religious pressures that may contribute to the normalisation of abuse and violence, but which also may create significant deterrents to women seeking support. This focus has been

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reflected in multiple Australian policy commitments, including the National Plan to Reduce Violence against Women and their Children 2010–2022 (Commonwealth of Australia 2011). The aim of this chapter, however, is not to recanvas the specificities of experiences of violence and abuse by immigrant and refugee women and their cultural context, but to focus on a specific subset – temporary migrants – and the ways in which their experiences of violence can be exacerbated by, indeed potentially inflicted by, the migration system. Importantly, as noted recently by the VRCFV, the approach to preventing family violence in immigrant and refugee communities cannot take the form of a ‘one-­ size-fits-­all’ response (VRCFV 2016: 101). As recognised by both the AMES (2015: 8) report on preventing family violence in CALD communities and the VRCFV discussion and recommendations pertaining to issues facing CALD communities around family violence (see also Vaughan et al. 2006), temporary migration status is a very specific element of vulnerability and risk which requires attention. Specifically, the VRCFV acknowledged ‘the particular vulnerability of CALD victims who do not have permanent residency’ (VRCFV 2016: 109), due to their dependency on their partner for their visa status (for example, women on partner visas or other working visas connected to their partner), uncertainty about visa status which ‘can be used by abusive partners or other family members to threaten and control women’ (VRCFV 2016: 110), and the potential for ‘harm or ostracism from their family and community if they leave their relationship and return to their country of origin’ (VRCFV 2016: 112). In the discussion that follows, the case is made that we must understand this aspect of risk or vulnerability as more than leverage for abuse by perpetrators, to recognise that the state – via policy, regulation and law – in fact creates, sustains and enforces this vulnerability. First, however, the specific meaning of temporariness in the Australian context is outlined, before the analytical framework is presented. What does it mean to be temporary? The reason temporariness in Australia matters to women experiencing family violence, similar to the situation in other nations, is that women who are temporary have limited rights and access to support if they seek assistance in relation to such violence. While in some nations, such as the United States, there may be a significant population of undocumented migrants who are potentially subject to similar experiences pertaining to the utilisation of migration status as a leverage, the focus here is on those who are in the country lawfully but not permanently. For the purpose of this analysis, there are two distinct groups within the category of temporary non-­citizen: those on partner visas, and those on other temporary visas (such as a student, visitor or work-­related visa). A partner visa is a visa sponsored by an Australian citizen or permanent resident, whereby the visa is granted based on the identification of a genuine relationship (see Department of Immigration and Border Protection [DIBP] 2017 for a full

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definition of genuine relationship and the evidentiary requirements to demonstrate this) between the sponsor and the visa applicant. This visa allows the applicant to come to Australia or remain in Australia (it can be applied for while in Australia or while in another country) to continue his/her relationship with the sponsor. As detailed in Figure 7.1 below (Segrave 2017: 1), the simplified difference4 between these two groups relates to whether there is any safety net to support those who experience family violence while in Australia on a temporary visa, and whether they are in any position to access welfare (housing and financial) support if they experience family violence. As indicated in Figure 7.1, those on partner visas who are on a pathway to permanent residency (which can be applied for after two years, upon application and satisfaction regarding proof of a genuine relationship, as per the administrative requirements of the DIBP – see Segrave 2017) are eligible to apply for the family violence provision. This provision in the Migration Act 1958 (and the Migration Regulation 1994) enables those whose relationship was genuine but broke down due to family violence to access permanent residency. The focus here is on temporariness – as those covered include women who are eligible to access but have yet to be granted access to the family violence provision (and therefore, to have access to permanent residency) and those who are ineligible due to holding a non-­eligible temporary visa. For all of those without permanent residency, access to crisis and other housing, Centrelink benefits, and some health and education services is limited (see VRCFV 2016: 108–109). This has been the subject of recent (though limited) concern: a 2015–2016 study in Victoria and Tasmania, involving interviews with 46 immigrant and refugee women who had experienced family violence (of whom fewer than ten were temporary), noted that the ‘conditions created by immigration and, in particular, visa class, often shaped … women’s access to employment, social security, housing, healthcare, childcare and education’ in situations of family violence (Vaughan et al.

Temporary migrant: partner visa (on PR pathway)

Temporary migrant: non-partner visa

Family violence

Eligible to apply for permanent residency via Family Violence Provision (on basis of evidence of genuine relationship and evidence of FV)

Issues that can arise: – perpetrator/s uses (false) threat of deportation to control – Until permanent residency is approved, limited access to financial/ housing support, vulnerability associated with no income and dependents to care for.

Family violence

Not eligible for permanent residency related to experience of FV

Issues that can arise: – victim-survivor has no long-term rights in Australia – financial/housing support extremely limited and not always accessible – no recognition of relationship or family violence

Figure 7.1 The basic difference between temporary migrants on a partner and non-partner visa.

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2016: 4). In this chapter, the focus is the insecurity posed by women’s migration status (as even those who can apply for the family violence provision have no guarantee that their application will be successful), and the way in which this insecurity is compounded by the specificity of abuse and control exerted in the context of family violence. Mapping the analytical framework: intersectionality and coercive control For the purposes of the analysis in this chapter, the foundation provided by Crenshaw (1991) in her account of intersectionality offers a useful lens, and one that helps to ensure that in the midst of critical accounts of gender in relation to gender-­based violence, specifically family violence, we recognise that non-­ citizenship, and temporariness in particular, has an important additional function in disempowering women. Crenshaw (1991) laid the ground for recognition that multiple and intersecting systems of oppression have a differential impact on populations, such that focusing on gender (or race or class, for example) narrowly and exclusively as a ‘single analytical category’ is insufficient and problematic. The concept of intersectionality provides a useful lens through which to examine the way in which power operates across multiple points of difference – including the way in which gendered experiences exist in direct connection with, not independent of, experiences of citizenship (McCall 2005). Generally, theorists drawing on intersectionality reject a view of women, or in this case of immigrant and refugee women, as having a universalised experience (see Hancock 2007). For this chapter, this framework lays the ground for focusing on migration status, and the way not only non-­citizenship but also temporariness creates specific risks and vulnerabilities, reflecting a subject position that is designed to ensure inequality in power for the non-­citizen temporary migrant. In this analysis, temporary migration status should not be equated with race, ethnicity or cultural ‘difference’, though it is often one of the major sites of social difference and inequality production. This is because temporary migration status is linked to citizenship rather than potential cultural, racial, ethnic or religious/faith distinctions: the operation of the migration regime in response to women who are temporary migrants who experience family violence is determined by their migration status first and foremost. This brings us to the conceptualisation of coercive control. Predominantly, the notion of coercive control has been used to describe and explore aspects of family and/or intimate partner violence that are not physical (see DeKeseredy, Dragiewicz and Schwartz 2017: 15–17). I draw here on Stark’s (2007) original conceptualisation of coercive control as a way to make sense of the impact of the  intersection of gender and non-­citizenship, and to examine the role of the  state – as the institution responsible for the migration regime – in creating  and upholding women’s vulnerability and risk in the context of family violence via the precarity of their status. Stark has argued that ‘the prism of the

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incident-­specific and injury-­based definition of violence has concealed its major components, dynamics, and effects, including the fact that this abuse is neither “domestic” nor primarily about “violence” ’ (Stark 2007: 10). Thus, Stark argued for the equal recognition of non-­physical abusive behaviours that serve to control and coerce women, including intimidation, threats, isolation, manipulation, psychological abuse, economic oppression, limitations on movement, and restrictions of liberty (Stark 2007). Importantly, Stark also recognised that ‘the abuse of women in personal life is inextricably bound up with their standing in the larger society’ (2007: 14). For this chapter, this recognition is extended to include the way in which women’s migration status, and therefore the migration regime, is directly linked to the coercive control of women, and how, specifically, the status of temporary non-­citizen and the specific restrictions on support and certainty of rights regarding women’s future migration status and the migration status of their children (and their rights in relation to this) are elements of coercion and control created by the state. This is primarily evidenced through the focus on women’s migration status rather than foregrounding and/or prioritising the response to their experience of family violence. It is clear that women’s temporary migration status is often utilised by perpetrators of violence (see Segrave 2017), who are effectively granted additional power in an abusive relationship by virtue of being a permanent resident or citizen.5 Through denying women access to the ‘the resources required for personhood and citizenship’ (Stark 2007: 15), the state, via the migration regime, also perpetrates and contributes to gendered violence. In this context, the state is understood to be multifaceted: it is at once institutions, laws, policy, regulation and actors. However, the focus in this chapter is on the institutions of the state, primarily law and policy, which offer some discretion to actors within the state infrastructure (for example, immigration personnel who make decisions regarding applications to access the family violence provision), but which serve, particularly within the migration regime, to demarcate the point of belonging (or not belonging) and the limits of the provisions available to non-­citizens. Decision-­making and the interpretation of law are not under analysis here; rather, it is the creation of the immigration institution and infrastructure that is recognised as one arm of the state and as an influential, and indeed coercive, mechanism that exists to enforce and enshrine power differentials between citizens and non-­citizens, and among non-­citizens. Within the context of family violence, it is argued, this is an additional form of coercive control exerted via the administrative legal and regulatory regime. As per Stark’s original conceptualisation, violence in and of itself should not be the only form of control and abuse to receive our critical attention that we focus on. Rather, we should look beyond the individualised operation of coercive control: the migration system pushes responsibility back onto women (as temporary non­citizens) to either leave (the country, the relationship) without any formal support and/or, for those who may be able to access the family violence provisions, to negotiate a complex administrative process and wait for full support

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until that process has resulted in a decision that enables them to access permanent residency. We know that family violence is overwhelmingly gendered, and thus it can be argued that the lack of access to much of the available family violence support (financial, housing, specific migration and other support) for temporary migrants and the provision of a safety net to only some temporary migrants are demonstrative not only of the indifference of powerful institutions to women’s vulnerability but also the state’s contribution towards ensuring a power imbalance based on gender and migration status. This is explored in this chapter via an examination of how family violence impacts temporary migrant women in specific ways – with a focus on the use of children as leverage and the transnational impact of threats to women and their extended families. But first the research methodology is presented. Methodology: mapping the intersections This chapter draws on a study that mapped the circumstances and experiences of, and the response to, family violence for temporary migrant women in Victoria who sought the support of InTouch Multicultural Centre Against Family Violence (hereinafter, InTouch, see Segrave 2017 for the full report). This agency supports over 1000 CALD women annually across Victoria, of whom approximately 30–40 per cent are on a temporary visa at the time of first contact (InTouch 2016). InTouch can support women through the criminal justice process and assist with accessing the support and resources available, and in addition can provide migration support as the organisation has a dedicated migration agent who works alongside the casework support workers and the legal team. The aim of this study was to document the circumstances and contexts of family violence experienced by women and in so doing examine the impact of temporary migration status on both the experience of and the response to family violence. The study involved creating a database based on 300 client case files. The cases included in the study were all closed over 2015–2016 and all involved women whose migration status, when they came into contact with InTouch, was temporary.6 This includes those on partner-­related visas, but also those on working, student, visitor and other temporary visas. The database was intended to be able to quantify specific elements of women’s circumstances and experiences, as a way to counter the predominance within the literature of qualitative information regarding temporary migration in the context of family violence and to provide a firm platform from which to identify the need (and thus argue) for specific policy reform based on a substantive data set. However, the data also includes extensive qualitative information, based on case notes and other information included in the case files,7 which offers important insights into the specificity of women’s experiences. The analysis presented in the report thus offers both quantitative and qualitative details regarding the situation and circumstances of victim-­survivors (such as demographics related to the victim-­ survivor and perpetrator, details of needs and services, information related to

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migration status and access to support), the identification of risk for this group of victim–survivors, and the identification of indicators related to slavery and human trafficking offences, including forced labour, forced marriage, human trafficking and slavery (as per sections 270 and 271 of the Commonwealth Criminal Code Act 1995). It is worth noting, by way of background, that in this study all of the victim–survivors were women and all had experienced family violence from their former or current male partner (though in 20 per cent of cases there were additional perpetrators – see Segrave 2017: 39). In this chapter, I draw briefly on two examples of women’s experiences of violence and vulnerability that connect their migration status with their experience of family violence: the use of children as leverage to control women; and the transnational impact of threats to women and their extended family, when they leave their abusive partner. Temporary migration and family violence: leveraging children and transnational threats of retaliation While there is a critical and growing recognition of the need to focus on children’s experiences of family violence, directly and indirectly, and to some extent in a way that is separate from women’s experiences of violence (see McCulloch et al. 2016; Fitz-­Gibbon et al. 2018), the focus here is on the way in which children are used as leverage, regardless of their presence or otherwise in the family home, or even in Australia. In the recent VRCFV, it was noted in the final report that ‘access and control through children can take on a particular nature for some migrant women who are especially vulnerable because of the insecurity of their immigration status’ (VRCFV 2016: 148). In this study, 52 per cent of women had dependants, accounting for 227 children and young people. Here, dependants are defined as those under 18 years of age for whom the victim–survivor had financial, legal and welfare responsibilities, and include biological children as well as other dependants such as the children of their current or former partner and, in one case, the younger brother of a woman who had travelled to Australia with her, was under 18 years of age, and whose visa was tied to her visa status. Importantly, not all of these dependants were in Australia at the time the victim–survivor made contact with InTouch, as 32 dependants were resident outside Australia at the time of contact (Segrave 2017: 23). For the majority of these 32 cases there was limited information available, other than a note indicating that a child or children were living with family in the victim–survivor’s country of origin. There was often also a note regarding the victim–survivor’s efforts to send money to care for the children and/or her intention to bring the child to Australia (often thwarted by the perpetrator). As the mothers in such cases had not cut off ties from their children, and remained responsible for them (financially but also as their mother and guardian), the children became a leverage for control, even in their physical absence, as evidenced by the following case notes:

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The victim–survivor’s 5-year-­old son was living in Thailand with his grandparents throughout the case. The victim-­survivor was trying to financially support her son and her parents while she was in Australia, until the perpetrator got angry at her and told her to stop. This case note provides just one insight into the ways in which children can be directly impacted and used as leverage in situations of family violence, particularly where the victim–survivor’s options are dependent upon the perpetrator. For a woman in such a situation it is not only her own future but also the future of her child and family that is dependent upon her remaining in Australia; yet in this case, as the woman was dependent on her visa sponsor, her partner controlled the extent to which she was able to provide for her son and parents in Thailand. Her insecurity of status was thus ensured via migration law. The only way in such a case that a victim–survivor could gain independence to enable her to support her son and parents would be to return to Thailand, or to access permanent residency via the partner visa. The latter would require that she provide demonstrable evidence to support the genuine relationship and family violence claim or that she remain in the relationship in order to pursue permanent residency after two years together (which is also a process dependent on the sponsor/partner’s cooperation) to then enable her to make independent decisions regarding financial support and/or sponsorship for her son and parents to come to Australia. In this context, it is not just the interpersonal relationship with the perpetrator that requires attention but also the specific ways in which the woman’s migration status ensures a level of precariousness – such that coming to another country to be in an intimate partner relationship with someone who has sponsored your visa for the purpose of maintaining that relationship results in the sponsor being free to manipulate the temporariness of that situation with impunity. The impact and the decisions to be made thus are assigned to the victim–survivor (as well as her family), and she is provided with very little protection from the migration system. For the majority of women in the study, however, they lived with their dependants in Australia, and of those children and young people, just under half (47 per cent) were Australian citizens (Segrave 2017: 24). Regardless of the child’s citizenship status, the children were used as leverage for control and coercion in the context of family violence. Women were threatened with having their children returned to their country of origin without them and/or were threatened with or forced (or in some cases deceived) to return to their country of origin without their children, creating significant custody issues upon women’s return. While it may be assumed that children who are Australian citizens are in a more secure position, and that this could potentially enable their mothers to access a more secure migration status in Australia, this is not the case. Parents of Australian citizen children who are not citizens are not automatically eligible for Australian permanent residency or any other pathway towards citizenship. The extent to which this happens across Australia is

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unknown, and extremely difficult to quantify. However, what is evidenced is the ways in which women’s vulnerability and disempowerment are achieved via the migration system and compounded by the threat of separation from their children, which is also enabled by the migration system, as citizen children and their temporary non-­citizen mothers have no automatic right to be together. As the following case note reveals: Many times he has threatened to divorce her and send her back to Vietnam. He threatened to take the baby away from her after she gave birth, which made her very scared and distressed. In another case, the victim–survivor’s migration status was used to separate her from her child, via deceiving her to leave the country and then seeking to disallow her from accessing the child on her return: The woman’s son was kept by the husband while woman was sent back to Thailand. Husband told her that she could spend sometimes with her family in Thailand and to learn hair dressing course. However, upon her return to Australia, she was denied access to see the child. In this case, a Family Court case ensued when her access to the child was denied, and later the victim–survivor was able to successfully access the family violence provision to enable her to be granted permanent residency. While the outcome was thus positive in this case, the story of women leaving the country and then being denied access to their children upon their return is not uncommon. What is most important for the present discussion is to note the ways in which the migration system, and the resultant inability of (or lack of desire to, due to fear and uncertainty) women to assert their rights due to their status as temporary non-­citizens, enables perpetrators to exert these forms of control against both women and children, with little consequence for the perpetrator. While these acts are not violent, they are significant acts of coercive control enacted by the perpetrator but enabled and ensured by the state. These examples of children or women travelling across national borders bring us then to consideration of the second type of coercive control seen in the context of temporary migration, exerted via the threats and potential consequences for women, in both Australia and their country of origin, who leave or expose an abusive marriage. In a 2016 study reviewing the response to the family violence risk assessment framework operating in Victoria, the specificity of risk for immigrant and refugee (referred to as CALD in that study) women was highlighted in one focus group where a CALD-­specific service provider caseworker recounted the following situation: I have a client call me that because they … [were] married back home in the community, they invite relatives and people come to the wedding

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ceremony. So everybody know that she got married. So [this] client … told me that, ‘If I have to go back, I’d rather die here’. So that’s how serious, how fearful when the perpetrator threaten to send them back, because they know that the woman … [is] too ashamed to go back. (FG17, see McCulloch et al. 2016: 83) This assertion – that death appears a better option than to return home following a marriage breakdown – brings into sharp relief the ways in which community and cultural expectations place very specific and yet in some ways intangible pressures on women to remain in situations of family violence. In the study in focus in this chapter, it was noted that nearly a quarter of women (24 per cent) indicated that they were worried about returning to their country of origin – a number that may be an underestimate given that there was no information regarding this in 63 per cent of cases (see Segrave 2017: 44). The quote above from the McCulloch et al. study highlights what is key to this argument: that perpetrators are aware that the threat to send women home is one that carries significant weight, and therefore offers the perpetrator significant leverage for control. In this study, it was noted in over a third of the case files (39 per cent) that the perpetrator/s had threatened to have the victim–­ survivor deported/reported to Immigration in order to have them sent back to their country of origin and/or in the same number of cases, that the perpetrator had threatened to or had sought to withdraw sponsorship of the victim–survivor’s visa (Segrave 2017: 45). The case notes indicated situations such as the following: When victim–survivor left her husband the first time, he contacted her family and threatened that if they didn’t make the victim–survivor withdraw her complaint he would make her life in both Australia or India miserable. What is highlighted in this brief case note are the ways in which women’s experience of violence is transnational: escape is not as simple as leaving Australia to return to their country of origin. The threats that are communicated are immediate and impactful, regardless of where woman are residing. In this study, 21 per cent of women indicated that they could not return to their country of origin safely or without fear, and 35 per cent indicated that they did not desire to return (Segrave 2017: 45). While this research is limited by its reliance on case notes, meaning direct evidence of threat is not captured, the pressure of potential community ostracism for women and their families, the potential financial impact (particularly in some arranged marriage cases) and the threats of violence are clearly directly impacting women’s decisions regarding what they must do when experiencing family violence (see VRCFV 2016; McCulloch et al. 2016; Vaughan et al. 2016). However, what is clear is that their migration status is used as leverage and that this form of control is

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highly impactful. To focus only or exclusively on the perpetrator silences any recognition that the migration system is designed to ensure that temporary non-­ citizens have limited protection in the context of family violence and, as such, empowers perpetrators while maintaining women in a precarious, uncertain and vulnerable position. The absence of the guarantee of support to remain in Australia, to make a life in Australia and/or to access support in Australia (let alone, to access support if women are to return to their country of origin) creates vulnerability and uncertainty. There are many implications of these findings; yet the purpose here is to highlight the structural and institutional disadvantage and vulnerability created via migration regimes that put migration status before the experience of family violence.

Conclusion: the borders of women’s security in the context of family violence While the two key findings drawn out in this chapter illuminate the specificity of abuse and control within the context of a victim-­survivor’s temporary migration status, they also point to the ways in which we can explore and understand the operation of coercive control as linked to migration law and policy. What we see is that women whose migration status is temporary are at heightened risk, and that their risk and vulnerability are maintained and sustained by a response that is based on attending first to migration status, and then to the experience of gendered violence. The state differentially responds to this group of women, and as a consequence empowers perpetrators to (threaten to) take their children and threaten their families, and ensures that retaliation for women leaving a relationship is not limited by international borders. It also protects sponsors, insofar as these coercive and abusive practices are not recognised within the  broad spectrum of family violence abuse or as failures of their agreed responsibilities as visa sponsors. As women move across national borders, within a temporary migration process, there is a loss of responsibility and absence of accountability: no one is responsible for linking gendered violence that occurs in Australia to what is undertaken in another country; and there is no way to recognise and hold people responsible for this. While in some ways these experiences are similar to the experiences of citizen victim–survivors, whose partners make threats regarding children, who stalk women wherever they travel within the country and beyond, or who make threats to women’s family and friends, there is a clear distinction to be made with regard to women’s lack of power and the limitation on women’s rights and access to support: there is an institutional layer of vulnerability that is created via the management of migration status. Currently, responses to family violence recognise that there are specific needs and vulnerabilities for immigrant and refugee women, but they do not interrogate the role of the migration system in contributing to or sustaining these needs. The reality of women’s experiences of family violence, risk and vulnerability is persistently ignored within the context of creating migration law and

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policy, including policy and regulations that are claimed to ‘protect’ women or prevent family violence (see Segrave and Burnett-­Wakes 2017). More concerning, there is an unwillingness to recognise and accept that our policy and legal regime may in fact contribute to this vulnerability. Elsewhere, it has been argued that, at the global level, women’s security remains in the background of international priorities and interventions, despite the significant efforts made in relation to recognition of the many forms of gendered violence that women experience (see True 2012). In some respects, it is essential to focus on different forms of violence and their manifestations, and to tailor responses to the specificity of context and location, such as (but clearly not limited to) rape in the context of war, family violence and gender-­based political violence (see Bardall 2017). However, it could also be argued that at times the consequence of separating forms of violence enables and ensures that we do not address and call to account the state apparatus that can sustain various forms of violence and harm. In this respect, there is a need to recognise that in the context of family violence and other forms of violence and abuse (including human trafficking) migration systems and their operation, even when they are ostensibly designed to ‘protect’ women, can have the (unintended) consequence of empowering perpetrators. There is a danger, in fact, in considering every form of violence separately and not calling structures such as migration controls to account for the ways in which they create and reinforce systems of ‘othering’ which in turn produce conditions for exploitation to occur (see also Segrave, Milivojevic and Pickering 2017). Through the analysis of the migration regime and its impact upon non-­citizens who experience abuse and violence, we can recognise that the absence of citizenship creates differential recognition of victimisation and limits how the nation responds to violence against women – and this is true in a range of contexts, from family violence to human trafficking (see Segrave, Milivojevic and Pickering 2017). The need, then, to acknowledge that gender-­based violence and women’s insecurity are sustained, in some cases, by migration regimes brings to mind Crenshaw’s (1991) original call to arms to recognise the ways in which gender and other forms of inequality – in this case in particular non-­citizenship – together create specific risk and vulnerability. To respond to family violence only as gendered allows the state to continue to disadvantage and delimit the provision of support to victim-­survivors who are not citizens, and in so doing to empower perpetrators.

Notes 1 In the Australian policy sphere, this group is referred to most often as CALD (culturally and linguistically diverse); however, in this chapter the term ‘immigrant and refugee women’ is utilised to refer to a broad community of recently arrived and settled migrants (drawing on the definition of Vaughan et al. 2016) unless CALD is used specifically within a cited reference. Yet, the chapter focuses more specifically on temporary migrant women and specifies this as necessary through the discussion.

Temporary migration and family violence   139 2 See, for example, research funded and published by Australia’s National Research Organisation for Women’s Safety (ANROWS). 3 It is worth noting that earlier feminist interventions, the work of bell hooks and many others really shone a light on the feminist work of the 1970s that sought, in large part, to make gendered violence a concern for all women equally, which, in fact, resulted in a failure to recognise inequality and the operation of power at multiple levels, such that all women are not equally subjected to and impacted by gendered violence and abuse. 4 It is worth noting that there are considerable complexities within the migration system, not detailed here, which means that there are some exceptions to this and there are a number of administrative hurdles and costs associated with the process involved in accessing a visa. 5 The focus here is on women in relationships with perpetrators who hold permanent residency or who are citizens: when both men and women are temporary the system in fact can create further obstacles that may hinder women’s ability or willingness to report violence and abuse. 6 The creation of the database involved the de-­identification of all data (names, dates and identifiable places in Australia), but nationality and references to countries of origin remain as in the original files: this enabled some picture of the breadth of temporary migration and the country of origin of the women seeking support, while also ensuring that specific cases would not be identifiable. This research was conducted with the approval of the Monash University Ethics in Human Research Committee (CF16/2277–2016001127). 7 It is worth noting that the reliance on case files, which include the collective record of the caseworker and migration agent at InTouch, are not maintained as a record for research purposes, which meant that the detail and breadth of each file varied considerably, as did the consistency with which some information was recorded or detailed. Thus, there were some areas of data collection where there were significant ‘unknowns’ simply because the information was not pertinent to that case and therefore not included; where unknowns are relevant in interpreting the analysis this is indicated.

References AMES (2015) Violence against Women in CALD Communities: Understandings and Actions to Prevent Violence against Women in CALD Communities, Canberra: AMES and Department of Social Services. Available from: www.ames.net.au/files/file/Research/ 20832%20AMES%20Actions%20Report%20Web.pdf (accessed 12 April 2018). Bardall, G. (2017) ‘The role of information and communication technologies in facilitating and resisting gendered forms of political violence’, in M. Segrave and L. Vitis (eds), Gender, Technology and Violence (pp. 100–117), Oxford: Routledge. Commonwealth of Australia (2011) The National Plan to Reduce Violence against Women and their Children 2010–2022, Canberra: Commonwealth of Australia (Department of Social Services). Online. Available from: www.dss.gov.au/women/programs-­services/ reducing-­violence/the-­national-plan-­to-reduce-­violence-against-­women-and-­theirchildren-­2010–2022 (accessed 12 April 2017). Crenshaw, K. (1991) ‘Mapping the margins: intersectionality, identity politics, and violence against women of color’, Stanford Law Review, 43(6): 1241–1299. DeKeseredy, W., Dragiewicz, M. and Schwartz, M. (2017) Abusive Endings: Separation and Divorce Violence against Women, Oxon: Routledge.

140   Marie Segrave Department of Immigration and Border Protection [DIBP] (2017) Partner Migration, Canberra: DIBP. Available from: www.border.gov.au/Forms/Documents/1127.pdf (accessed 12 April 2017). Fitz-­Gibbon, K., Maher, J. M., McCulloch, J. and Segrave, M (2018) ‘Understanding and responding to family violence risks to children: evidence-­based risk assessment for children and the importance of gender’, Australian and New Zealand Journal of Criminology. First published online. Available from: https://doi.org/10.1177/0004865818 760378. Hancock, A. M. (2007) ‘When multiplication doesn’t equal quick addition: examining intersectionality as a research paradigm’, Perspectives on Politics, 5(1): 63–79. InTouch Multicultural Centre against Family Violence (2016) InTouch Multicultural Centre against Family Violence: Annual Report 2015–2016, Richmond: InTouch Multicultural Centre Against Family Violence. Lum On, M., Ayre, J., Webster, J. and Moon, L. (2016) Examination of the Health Outcomes of Intimate Partner Violence against Women, State of Knowledge paper. Sydney: ANROWS. McCall, L. (2005) ‘The complexity of intersectionality’, Signs: Journal of Women in Culture and Society, 30(3): 1771–1800. McCulloch, J., Maher, J. M., Fitz-­Gibbon, K., Segrave, M. and Roffee, J. (2016) Review of the Family Violence Risk Assessment and Risk Management Framework (CRAF ). Prepared for the Department of Health and Human Services by the School of Social Sciences, Focus Program on Gender and Family Violence: New Frameworks in Prevention, Monash University. Melbourne: Monash University. Prime Minister of Australia, Hon. Malcolm Turnbull, MP (2016) ‘Government strengthens investment to reduce violence against women and children’, Media Release, 28 October 2016. Online. Available from: www.pm.gov.au/media/2016-10-28/government-­ strengthens-investment-­reduce-violence-­against-women-­and-children (accessed 12 April 2018). Segrave, M. (2017) Temporary Migration and Family Violence: An Analysis of Victimisation, Support and Vulnerability. Melbourne: Monash University. Available from: //artsonline. monash.edu.au/gender-­and-family-­violence/files/2017/10/Temporary-­migration-and-­ family-violence_Full-­Report-2017.pdf (accessed 12 April 2018). Segrave, M. and Burnett-­Wakes, K. (2017) ‘Addressing family violence through visa sponsor checks: a step in the right direction?’ Current Issues in Criminal Justice, 29(2): 155–165. Segrave, M., Milivojevic, S. and Pickering S. (2017) Sex Trafficking and Modern Slavery: The Absence of Evidence, 2nd edition of Sex Trafficking and International Context, Oxon: Routledge. Stark, E. (2007) Coercive Control: The Entrapment of Women in Personal Life, Oxford: Oxford University Press. True, J. (2012) The Political Economy of Violence against Women, Oxford: Oxford University Press. Vaughan, C., Davis, E., Murdolo, A., Chen J, Murray, L., Block, K. and Warr, D. (2015) Promoting Community-­led Responses to Violence against Immigrant and Refugee Women in Metropolitan and Regional Australia: The ASPIRE Project, State of Knowledge paper 7, Sydney: Australia’s National Research Organisation for Women’s Safety. Vaughan, C., Davis, E., Murdulo, A., Chen, J., Murray, L., Quiazon, R., Block, R. and Warr, D. (2016) Promoting Community-­led Responses to Violence against Immigration and

Temporary migration and family violence   141 Refugee Women in Metropolitan and Regional Australia, The ASPIRE Project: Research Report (ANROWS Horizon 07/2016). Sydney: Australia’s National Research Organisation for Women’s Safety. VRCFV [Victorian Royal Commission into Family Violence] (2016) Summary and Recommendations. State of Victoria Parliament Paper No. 132. Available from: http:// les.rcfv.com.au/Reports/Final/RCFV-­All-Volumes.pdf (accessed 12 April 2018).

Legislation Commonwealth Criminal Code Act 1995 Migration Act 1958 (Cth) Migration Regulation 1994

Chapter 8

Misunderstanding risk, migration and ethnicity in intimate partner violence Gema Varona

Introduction One in five European women has experienced physical and/or sexual violence from a partner (European Union Agency for Fundamental Rights 2014). Considering the range of national contexts, and despite the limitations of comparative rates, it is quite surprising to read the UN Global Database on Violence against Women, available online. Drawing from that database, the sources of which are surveys and official statistics, Table 8.1 presents data on the prevalence of violence against women in relation to inequality in selected countries. Thus, Spain is in a fairly good position, with a lower prevalence of intimate partner violence (IPV). Moreover, the Spanish integrated legal system to tackle IPV has been presented on several occasions as a model in national and international forums. Exemplary here is the statement by Bacchus et al. (2012) that ‘Spain has implemented a fairly rigorous system for monitoring indicators of gender violence’. However, in the field of human rights and feminist activism, as portrayed in the media, the feeling is that something keeps going wrong with legislation and in practice. Even though there is disagreement on the causes, this discontent is partly based on the average annual number of women killed in Spain (around 60) by their partners or ex-­partners. In any case, this number seems lower than in other, more egalitarian countries. The discontent is also due to the existence of hidden victimisation and the dissatisfaction or loneliness Table 8.1  IPV and inequality

Spain United Kingdom and Northern Ireland Norway Australia

Lifetime physical and/or sexual IPV

Gender inequality index rank

13 29 27 17

15 28  6 24

per per per per

cent cent cent cent

Source: adapted from the UN Global Database on Violence against Women.

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of abused women in contact with the penal system. At the same time, some criticism has been focused on what is seen as an overly broad interpretation of the concept of gender violence, which might have raised more problems than adequate solutions However, this observation is considered politically incorrect in most feminist forums, because it is felt that it doubts the existence of patriarchy (García 2016). Notwithstanding the benefits of the legislation passed in 2004, and other reforms that followed, in this paper we want to challenge the view of Spanish policies on gender violence as a model of good practice in a globalised world. The law’s paradigmatic subject is thought of as being autonomous and frozen in time. In the case of victims, the notion of an ideal victim is reinforced, even though European and Spanish legislation stresses the need for an individualised evaluation of victims, mainly based on risk assessment. A comparison of public policies, legislation and practice shows that there is much frustration over and criticism of the legal concept of gender violence, the conceptualisation of women as victims and the enforcement of the law, particularly in terms of safety and support. This frustration is felt by immigrant women and women of ethnic minorities in particular, who do not have much voice in the system. As is the case in many countries and as a result of economic inequality and globalisation, among the police and judicial registered victims there is an overrepresentation of migrant women and women of ethnic minorities who lack resources. Moreover, these women do not always align with the ideal victim envisioned by the law, professionals and society. Paradoxically, many times, protection becomes exclusion, and nationality and discrimination enter the managerial scheme of risk and needs assessment. The old discussion of how the law conceptualises gender violence and women as its victims shows that the rationale is the ‘protection’ of ‘vulnerable subjects’ instead of ‘pro-­action’ to improve living conditions in their communities. To illustrate the ideas developed in each section of this chapter, two case studies will be narrated and analysed, based, respectively, on two in-­depth interviews with a Chinese woman and a social worker supporting the Gypsy community. Finally, we conclude by summarising the reasons to question Spanish legislation and policy as a model to prevent violence, intervene and repair victimisation when women are victims of IPV.

Gender violence in Spain: policies, legislation and practice in times of austerity According to Spain’s National Strategy for the Eradication of Violence Against Women (2013–2016) (Spanish Government 2013), the proportion of women interviewed who reported experiencing gender-­based abuse at some time in their lives more than doubled, from 5.1 per cent in 1999 to 10.9 per cent in 2011. There were 28,281 officially registered female victims of gender-­related violence in Spain in 2016, a 2.4 per cent rise from 2015, according to the country’s National Statistics Institute (INE). After a drop between 2012 and 2014,

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the number of officially recorded victims grew in 2015 and 2016. The rate of abuse is highest in the 25–29 years age group. The development of Spanish criminal legislation on IPV dates back to 1989, when domestic violence was specifically included in the criminal code. After mounting pressure from feminist groups fighting against a long tradition of patriarchal domination reflected in criminal law (Varona and Martínez 2016), the introduction of the Spanish Law 1/2004 providing for comprehensive measures against gender violence was considered a milestone. It received the support of all political parties in the parliament. In Article 1.1 of this law, the concept of gender violence is defined in terms of IPV as follows: violence exercised against women by their present or former spouses or by men with whom they maintain or have maintained analogous affective relations, with or without cohabitation, as an expression of discrimination, the situation of inequality and the power relations prevailing between the sexes. It includes different types of violence against women – physical, psychological, sexual, economic and symbolic, but always within the context of a current or former partner relationship. Since the adoption of Law 1/2004, the Government Office for Gender-­Based Violence, today located within the office of the Secretary of State for Social Services and Equality, is in charge of designing multi-­year action strategies. Because of decentralised public policy in this area, in relation to the police, equality and social services, Spanish regions have created protocols for inter-­ institutional coordination (Bustelo 2016). In practice, these protocols have been very much affected by the austerity period (Salazar 2016). According to the Spanish Government (2016), the policy implemented is based on ‘a participatory approach that involves all regional and local authorities and ministerial departments and makes efforts to promote coordination and networking’. Under the initiative entitled Companies for a Society Free of Gender-­Based Violence, private organisations are also included in the campaign for social awareness. However, many activists continue to complain of a lack of coordination and educational prevention, which they claim has persisted even after the 2017 agreement of all political parties on the matter. In 2002, the Observatory Against Domestic and Gender-­Based Violence, within the Judiciary Power Council, was created to measure the impact of the penal system. Law 1/2004 provides for police, judicial, financial, protective and social measures as precautionary measures or sanctions to be included in a criminal ruling. This law also required the creation of Special Courts for Violence Against Women presided over by specially trained judges, as well as a special unit in the prosecutor’s office. These Special Courts can resolve both (family) civil and criminal matters, and judges must hear cases within 72 hours of the complaint being filed. Victims are interviewed and ‘their continued risk of

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further harm is evaluated’ by the police prior to going before a judge. The Organisation for Security and Cooperation in Europe (OSCE 2014) describes the process as follows: The judge will dismiss the case, issue a protective order and, in appropriate cases, require the perpetrator to wear a tracking bracelet or in some cases face jail time. When the victim drops the complaint, the prosecutor will continue to go forward where he or she believes there is sufficient evidence against the perpetrator. An unintended consequence of the speedy procedure, however, is that in some situations, legitimate cases are dismissed because the proper evidence cannot be collected in the required 72 hours. This is especially true for complaints about psychological violence. In principle, all relevant information in a protection order is given in Spanish, English, French and Arabic. The breach of a protection order constitutes a criminal offence (Freixes 2015). Beyond the penal code, some other legal reforms to be considered, which have been introduced since 2004, are the following: a b c

The Organic Act 3/2007, on the Effective Equality of Women and Men Law 42/2015 on Civil Procedure, which recognises that victims and their legal beneficiaries, regardless of the existence of resources to bring legal action, are entitled to immediate free legal aid Law 4/2015 on the standing of victims of crime, following European Union (EU) Directive 29/2012. It understands victims of IPV as vulnerable and includes minors as victims in relation to access to protection, assistance and support. Moreover, victims have the right to be informed of the legal and penitentiary status of the aggressor.

Despite this body of legislation, accompanied by more punishment in the criminal code, some criticism by international organisations remains. The report of the OSCE (2014) on its country visit to Spain in 2013, even though the Spanish Government stated that the economic crisis had no influence over criminal policy on gender violence, quoted Rodríguez (2013) on the effects of the economic crisis on gender equality related to budget cuts. In July 2015, the Committee on the Elimination of Discrimination Against Women (CEDAW) considered another report of the Spanish ambassador and stated that: The Committee of Experts was disappointed that the report of Spain was silent on the impact of the economic crisis and its disproportionate impact on women in particular.… While Law 1/2004 on gender-­based violence was a key emancipating instrument, Experts wondered why Spain did not have a comprehensive legal instrument which dealt with violence as a

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cross-­cutting issue and expanded the focus from violence by intimate partners to all forms of violence.  (CEDAW 2015) In response, the Spanish ambassador said that ‘a comprehensive system of risk evaluation for victims of violence against women and their children was in place’ – but no details were provided. The CEDAW Shadow report for Spain denounced the fact that, between 2009 and 2013, the government reduced the public budget dedicated to measures against gender violence by 23 per cent. At the same time, the Shadow report denounced the fact that the Autonomous Communities or regional governments from 2008 to 2013 reduced the funding dedicated to their programmes against discrimination and violence against women by 32.5 per cent. In relation to these cuts, Spain was also asked by the OSCE (2014) about the rights of migrant women with irregular status (Smith and LeVoy 2015), in particular, access to healthcare for those who are victims of violence (Ruiz-­Péreza et al. 2017). This question arose in relation to the supposed savings in public health made by restricting access for irregular immigrants. The Spanish delegation said that Law 16/2012 allowed for free access to healthcare for girls under the age of 18 and pregnant migrant women, and access to emergency healthcare for migrant women and men in an irregular situation. However, this law and its practice have been criticised by non-­government organisations working with immigrants, particularly in some regions. Finally, in response to the CEDAW assessment, according to a European Parliament report (2016), ten years after its adoption Law 1/2004 could be improved by including under gender-­based violence other crimes such as human trafficking or sexual crimes outside an intimate relationship. Regarding IPV, the European Parliament (2016) concluded that the problem of gender-­based violence in Spain has not decreased in magnitude during the period 2009–2016. Quoting data from the Government Delegation on Violence, even though the number of complaints diminished from 135,539 in 2009 to 70,236 in 2016, the number of murder victims has not decreased: From 2009 to 2016, 508 women have been murdered due to gender-­based violence, and these deaths are only the tip of the physical and psychological violence women experience. If we consider the time ranging from the adoption of the 1/2004 law until 2016, the number of mortal victims of gender violence grows to 796 women. At the same time, the European Parliament underlined the mobilisation of feminist movements in several demonstrations, ‘including the massive 7th November 2015 march to claim a stronger governmental commitment in the fight against gender violence’. However, according to the European Parliament (2016):

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such institutional commitment is currently lagging behind civil society’s expectations. Gender violence policies in Spain are threatened by governmental budget cuts enacted in the context of austerity from 2009 onwards.

The overrepresentation of migrant women and women of ethnic minorities as victims of IPV: on risky and vulnerable collectivities Some figures on overrepresentation As is the case in other countries (Tudela 2015), the European Union (2014) states that violence in Spain particularly impacts immigrants and women affected by some form of disability. In 2011, 20.9 per cent of immigrants suffered IPV – a percentage twice as high as that for native Spanish women. Among disabled women, this percentage was 30 per cent. As the European Web Site on Integration (2015) notes, according to the Spanish report Ten Years of the Organic Law 1/2004 of 28 December on Comprehensive Protection Measures Against Gender Violence in the Courts, the phenomenon of violence against women is much greater among the foreign population, since the number of complaints in this group per 10,000 women is quadruple the number observed for Spanish women (49.2 for Spanish women and 196.2 for foreigners). According to another report by the Observatory Against Domestic and Gender-­Based Violence published in 2014, which analysed data from 2013, one in three women (33 per cent) who had sought a restraining order in the past ten years was a foreigner, and 26 per cent of the women killed in 2013 by gender violence were foreigners. A trend that began in 2009 of a reduction in the overrepresentation of foreign women in the total number of victims could be observed, but this has reversed in recent years. As in previous years, women from Latin America represent the largest group of all foreign victims – 50 per cent in 2013 and 57 per cent in 2012. The report of the Spanish Observatory also pointed out that 28 per cent of alleged perpetrators were foreigners, while also highlighting the overrepresentation of foreign males, who only represented 12.31 per cent of the total male population in 2013. However, there has been a significant decline (36 per cent) in foreign aggressors since 2009, which might have to do with the lower immigration figures seen during the economic crisis. In any case, according to the INE, the number of convicted foreigners coming from Latin America and Africa is overrepresented. Paradoxes of hidden victimisation and overrepresentation If immigrant women under conditions of social exclusion and cultural patterns of patriarchy find it more difficult to file complaints against their abusers and make their victimisation more visible in society (Bello 2015), what can explain

148   Gema Varona

their overrepresentation in the registered data held by the police and courts? Moreover, why are Gypsy or Chinese women rarely present in that data yet frustrated with the criminal justice system when involved in it? The European Union (2014) observed ‘that the problem of violence remains in strict association with the state of some weakness and dependency in other people’. A 2017 report by the Adecco Foundation surveying 300 abused women found that 91 per cent failed to report IPV out of fear that either they or their partners would lose their job. In this Adecco study, economic dependence was one of the major causes for not complaining about abusers. It must be underlined that this sort of dependence is intertwined with cultural and psychological dependence. Spoken and body language barriers also pose barriers. According to Valero-­Garcés (2016) and Abril (2015), based on the research surveying foreign victims, police, legal, health and welfare agents, access to (qualified) interpreters is not guaranteed in practice. Many times, immigrant women do not fit with the notion of the ideal IPV victim who accepts all police, judicial and social service protection by collaborating with them according to the protocols. Moreover, stereotypes are upheld by some agents. For example, some professionals talk about overly passionate victims, in relation to South American women (Wasileski and Miller 2014). However, as shown later in the case study of the Chinese woman, being too rational and calm can be interpreted as not having suffered much. Thus, processes of minimising and blaming can be observed. Labelling some victims as less deserving of empathy and resources favours the perpetuation of myths in everyday practice. Intersectionality and gender violence Martinez-­Roman et al. (2017: 202) describe IPV against women as a violation of human rights and a form of discrimination that is ‘compounded by other discrimination factors, such as migration’. In their qualitative study, by exploring the perspectives of experienced social workers in the field, they concluded that the risk of violence can increase because of the legal and economic situation and the barriers to accessing information and support services immigrant women encounter. Thus, better public policies are needed to attend to the demands and needs of these women. Stigma, isolation, housing problems, lack of access to residence permits and economic problems are some of the potential personal, family and community risks, fears and costs of entering the criminal system (Edgar and Doherty 2001). Again, immigrant and ethnic minority victims find it more difficult to report because of a variety of reasons, including: language barriers; lack of support; family, economic and work situations; legal or administrative status; discrimination and stereotyping. In addition, their home country cultural and institutional practices may condition decisions due to a lack of understanding of or trust in the legal system. Finally, other factors like disabilities or previous victimisation

Risk, migration and ethnicity   149

as refugees can impact women’s ability to seek help (Peláez and Villarino 2016). Thus, we must presume that the women who do enter the criminal justice system represent the tip of the iceberg. On the other hand, perhaps some immigrant women and ethnic minority women are more controlled by the criminal and social services system, that is, the hidden part of the iceberg (particularly in cases of non-­extreme violence) is even bigger for Spanish women. This last statement could be supported by the fact that cases of many immigrant women enter via the health or social service systems (Vives-­Cases et al. 2014) and that Spanish prosecutors cannot drop these cases. Even though the situation improved after a 2011 reform of the immigration legislation (Article 31b), support continues to be dependent on abuse complaints. If women don’t denounce they will not get support. The Government Office for Gender-­Based Violence developed a ‘Plan of attention to and prevention of gender violence in migrant populations (2009–2012)’, and some regional governments, like the Basque Country, have also adopted specific strategies – however, the latter seem insufficient. As stated by multiple authors (Menchón 2015), step by step, in the Spanish criminal justice system victims find one difficulty after another. And once the case is finalised, victims might find that there is no sentence for the abuser, because the presumption of innocence prevails during the trial. In such cases, the victim can be accused of making a false report and be obliged to pay for the resources already given to her. Paradoxically, the legislative and social measures provided for women, especially immigrant women, can be used against them, as they are suspected of taking advantage of their situation by demanding welfare services. In some cases, women are forced to prove that they are not driven by such a motivation (Menchón 2015). However, statistical data in relation to granting residence permits when reporting gender violence does not suggest a pattern of abuse by victims. What the statistical data do indicate is that there are more sentences derived from the counter-­reports against foreign women1 than those against Spanish women (Naredo 2012). How to conceptualise and measure the risk of different women in an individualised basis? Individual rights, community and alterity (otherness) in safety assessment Obviously, risk assessment is related not only to objectively checking the existence of some factors, derived from ‘consistent scientific’ studies, but also to professional attitudes, victim narratives and testimony credibility. When talking about risk, we can think about the risk of women being revictimised or suffering secondary victimisation, in the terms of the 2012 European Union Directive, and the risk of the offender (re)offending. To evaluate the risk of victims, all recent legislation stresses the need for an ‘individualised evaluation’. However, the Spanish Statute of the Victim transposing that directive also includes a provision of austerity – that is, requiring implementation of this statute without

150   Gema Varona

increasing financing. The effect is that professionals have more obligations with the same or fewer resources. In practice, particularly at the level of some police and other criminal justice agencies, there is no such thing as an ‘individualised’ process of listening to victims’ needs but rather a standardised protocol that is applied. As for offenders, following a global trend, the use of structured tools for a violence-­related risk assessment is growing in Spain. In the field of mental health and violence, a specific study (Arbach-­Lucioni et al. 2015 – about violence in general, not only gender violence) has highlighted the importance of a violence risk assessment as a key requirement in professional decision-­making involving the prevention of, intervention in and reporting on human behaviour. Structured tools for violence risk assessments can ‘improve the accuracy of assessments based exclusively on clinical judgment or expertise in psychiatric, correctional and legal settings’. Arbach-­Lucioni et al.’s study includes the results of the first survey of the professional practices associated with tools for violence risk assessment in Spain. As in other countries, Robert Hare’s psychopathy scales (Psychopathy Checklist-­Revised and Psychopathy Checklist: Screening Version) and the Historical-­Clinical-Risk Management-­20 are the most used tools due to professional choice and institutional requirements. According to several studies (Buchanan 1999; Cartuyvels 2017), there is a change in the status of penal control expertise that can be defined as an evolution from dangerousness to risk. As more and more pressure is put on judges, prosecutors and police by media and society, risk assessment tools are seen by practitioners not only as a more scientific instrument but also as a way of sharing the responsibility for decision-­making. The concept of dangerousness, at least in Spanish criminal policy, is based on individual evaluation and a clinical approach, whereas the concept of risk is based on aggregated data and patterns and uses algorithms. The latter therefore does not require a social work or therapeutic approach but a systemic or managerial one. In this actuarial justice risk assessment is seen as more precise and objective, with regard to the subjectivity of professionals’ individual evaluations, and as having a more predictive value – valuable insofar as predicting the future is seen as far more important than looking to pre-­existing discriminatory factors). Individual evaluations are thus replaced by risk scales, which are identified with risk profiles and based on probabilistic statistical data. As in many other spheres of life in the twenty-­first century, we are using an algorithmic logic of probabilities that is not the causal logic usually employed in crime control. In algorithmic logic, a concrete subject of intervention is substituted by risky populations derived from an abstract combination of statistical sets (Castel 1983). This means a new form of surveillance economy where real presence, interpersonal contact and reciprocity between supervisor and supervised is no longer needed. The major problem with this type of risk assessment is that factors like ethnic  origin, migration status and access to resources are considered risk factors  instead of already factors representing inequality. The correlation of

Risk, migration and ethnicity   151

heterogeneous elements, where the condition of being a migrant or ethnic minority counts unfavourably, is presented as an objective scientific prognosis. This is part of the myth of absolute security in a risk society (Beck 1992). As Castel stated (1983: 127), those elements ‘deconstruct the concrete subject of intervention and reconstruct a combination of all the factors able to produce a risk’, which brings, among other effects, an iatrogenic risk to risk management (Wiener 1998). The reason for this, according to Castel (1983: 127), is that this kind of risk management assumes that individuals are preassigned to a concrete place in the social geography. This favours further exclusion and stigmatisation and overlooks the interrelation of different categories of discrimination in society while, at the same time, the law imagines those individuals as autonomous. An example of the instruments used in Spain In 2007, the Ministry of the Interior began working on an Integrated System of Monitoring Cases of Violence Against Women (VdG system) (European Union 2014). The system integrated many entities (local, regional and national police forces, prosecutors, government department for violence against women, judges, the penitentiary system, and social services). The VdG system aimed to monitor the victim’s situation. It used uniform tools to produce a risk estimation of violent attacks reoccurring, including a PRE (Police Risk Evaluation) questionnaire and a PREE (Police Risk Evolution Evaluation) questionnaire. The PRE form consists of three columns: the first includes the source of the information, the second contains 16 indicators of reoffending and the third one refers to the estimated level of risk (low, average, high, extremely high or lack of knowledge) (Kordaczuk-­Wąs and Putka 2012). When the form is complete, the system automatically estimates the degree of risk. The authors of the system have designed an additional option for agents, but only for a higher estimation. In an empirical study on actuarial tools designed to estimate the risk of occurrence of further violence after a previous abuse complaint (police recidivism), López-Ossorioa et al. (2017) noted that police take into account risk and protective indicators, even though they are not behavioural assessment experts. In any case, protocols indicate that in the case of disagreement between judicial and police authorities, judicial authorities’ decisions prevail. The PREE form is filled out periodically. In this case, 17 indicators are used, including the social, financial and professional situation of the perpetrator; support for the victim provided by her community; the victim’s failure to abide by the agreed safety principles, such as by contacting the perpetrator, resigning electronic supervision, showing a desire to appeal reports, changing one’s testimony or wanting to resign from the preventive measures; and mental or psychiatric problems or addictions. According to research, 44 per cent of perpetrators who killed their female partner previously had conflicts with the law, nearly 30 per cent of which did not concern domestic violence. For this reason, changes

152   Gema Varona

were made to the form to include a question about previous conflicts with the law as a basis for increasing the risk level (Kordaczuk-­Wąs and Putka 2012; de la Poza, Jódar and Barreda 2016; López-Ossorioa et al. 2017). In the summer of 2016, a new risk assessment protocol for the police was approved by the Instruction 4/2016 of the Secretary of Security. The Office of the Ombudsman, which had previously demanded the update of the police risk assessment indicators, welcomed the implementation of this new protocol, which includes a guidebook with safety advice. The protocol includes new questionnaires for the police, who must consider the following: a b c d e

the kind of violence suffered by the victim the relationship with the offender previous data on the offender and the context the family, social, economic and labour conditions of victims and offenders withdrawal of abuse complaints, continuation of living together and renunciation of protection measures by the victim.

Instruction 4/2016 includes minors as victims. It also talks of a ‘personalised plan of protection’ with ‘active participation’ by every victim in the case. In addition, agents must inform their superiors about the resources needed. Beyond the gap between rhetoric and practice, part of the general concern with risk assessment in this area (which, in response to earlier criticisms, now includes the notion of ‘needs’) has been expressed by the US Council of State Government Justice Center (2016). This centre has studied the influence of bias on risk and needs assessment in the criminal justice system. Something goes wrong if the assignment of risk scores and the decisions based on them rely on an assessment that is not equally accurate across all groups. When considering class, education level, employment, neighbourhood, marital status and family resources, professionals must know how to use the assessment tool, and resources have to be allocated to meet the needs resulting from the assessment. Finally, this tool cannot be used as the only resource to make decisions in the criminal justice system. In the same vein, even when focusing on sentencing, Monaham and Skeem (2016) have pointed out the four principal problems confronting risk assessment: conflating risk and blame, barring individual inferences based on group data, failing to distinguish risk assessment from risk reduction, and ignoring the impact of racial and economic disparities.

Illustrating the complexity: interviews with a Chinese woman and a social worker in a Gypsy community To illustrate the ideas developed in the previous sections of this chapter, we will  now offer some narrative analysis and excerpts of the transcripts of two interviews carried out in May 2016, as part of an ongoing exploratory project

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examining the testimonies of professionals and victims in relation to the criminal justice system and gender violence in the Basque Country (Spain). The interviewees were contacted through the Basque Society of Victimology. A Chinese woman’s story about being alone and asking for help The first interviewee was a Chinese woman who suffered gender violence and was in contact with the criminal justice system (state) and different social service systems (provincial and municipal). Aged 30 at the time of the interview, with a basic education, she suffered physical and psychological abuse over several years at the hands of her Basque partner, whom she met when working in the Basque city of San Sebastián and who was the father of her child. She arrived in Spain in 2011 and spent some time working in other cities before coming to the Basque Country. Her experience with the criminal justice system was varied. She was happy with the police but not with the judge, who seemed not to believe her. She wanted a restraining order, but it was not granted because the judge did not find enough evidence of risk: I needed more listening by the judge; it is not only about the language problem. I felt treated like a number. The harm produced was more inside than outside. I don’t usually cry, and it seems that if you don’t cry, it is because you are not a real victim.… Beyond being a man or a woman, I am a human being.… I didn’t want him to go to jail, but to stay far from me. Finally, the case was dismissed. Today the relationship with her ex-­partner is non-­existent even though they share the guardianship of their son. She considered the social services of the region to be overly paternalistic and controlling, but she had much praise for the municipal social workers and psychologists she encountered. She was especially thankful for their assistance in gaining access to psychological, housing and employment services, with a focus on rights and empowerment of women. She was provided with free psychological treatment and legal advice. In this sense, she said that she experienced ‘sorority’ (sisterhood) – a feminist concept encapsulating women’s solidarity – and defined herself as both Western and Oriental. She considered the criminal justice system in Spain to be much better than that in China, even if Chinese law is changing. Still, Chinese families have a major role in dealing with IPV. She knows about Chinese women in the Basque Country who have kept silent during or after violence because they felt shame and feared their community’s opinion. They were also afraid of their Chinese husband being detained and sent back to China. Filing an abuse complaint about one’s husband is identified by these women as marking one as a ‘bad woman’ – thus blame of victims by community, family and oneself appears to be

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quite normal. She also spoke of similar cases of South American women and Muslim women living in the Basque Country. She expressed the view that Chinese women are not used to being alone, and that they do not know who they are without a husband, a family, a community. In this regard, perhaps because she was alone, she went to the police – if she had had family around her, they might not have let her go, thinking of the child. Even today she has not said anything about this violence to her family in China; although being divorced, as she now is, is not a problem because divorce is now more common in China. Before she went to the police, her ex-­partner used to tell her that some violence is normal in couples. For a while she believed him, because she was the foreigner, the outsider in Basque culture. The police advised her to go to the municipal social services, and there she found the help she needed, because they provided her with a refuge: I wanted to go, otherwise I was going to jump through the window one day or another.… In the municipal social services I felt like a human being again because I was treated with respect and asked what I wanted. I felt safe, which means a lot for a foreigner. In the provincial social services, where I went first, they made me feel I was poor and without rights. They were my owners; they could control me because they were giving me social help and caring for my son as a minor.… I wanted to get out of the violence but sometimes I felt I was pushed inside again. This woman is one of the very few cases of Chinese women in Spain filing an abuse complaint about gender violence and maintaining the accusation throughout the criminal justice process. In her opinion: Many Chinese women never think about what they really want but about what others expect from them. Many work like a machine in the Chinese stores of the Basque Country and they don’t have another life outside work and family. She did not want to go back to China. Life is not easy there for single mothers. She now wants to be alone, something that was not previously an option for her, and she is very happy being a mother: ‘I feel well in the Basque Country. Sometimes some people call me “Chinese” in a derogatory way, but that is what I am’. A social worker supporting women in the Gypsy community The second interview captured the opinion of an experienced social worker working in San Sebastián. She preferred to talk of ‘Gypsies’, because that is how they like to call themselves, rather than ‘Roma’. The Gypsy community is a very closed one, and they do not understand the standard criminal justice system or

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non-­Gypsy law in general. If there is gender violence, the whole family is involved, because social order is based on families and clans. They manage a complex system of honour that includes negotiation or mediation so that there is no violence between two clans. The mediator is usually a respected aged man called ‘uncle’. There are also cultural differences between the Basque and foreign gypsies, who live in a more precarious way. In general, even though prohibited by Spanish law, some forms of mediation are practised by Gypsy communities. Gypsy women do not feel that they are understood in the criminal justice system. Usually, gender violence against Gypsy women is not seen by the criminal justice system. Some women stay silent, and many others try to look for solutions within the clan. Only the most serious cases enter the criminal justice system, and, of those, only a few end up with a sentence, because many Gypsy women do not want to testify. Outside their community, they feel like they are ‘nothing’ or lost. They also feel treated in a discriminatory way by the non-­ Gypsy community and the law itself. Gender violence legislation will not force changes to these cultural differences. Gypsy women and men must change in terms of gender equality, but this will only be possible if both Gypsy women and men believe in the value of it and if society and the criminal justice system acknowledge the existence of discrimination. When the social worker accompanies women to the police, she observes too many protocols and an overly standardised way of treating them. The police sit and type on their computers, stressing the possible factors that demonstrate violence. Often police agents (both women and men) tend to stereotype and judge Gypsy women. The Gypsy women do not feel good when they are asked whether they feel shame or blame, or if they have tried to defend themselves, and they feel judged. The police are not trained in active listening or in assessment. Empowerment programmes for women might offer them some control, because many women feel that in the criminal justice system ‘all criminal justice actors think, feel and act for them’. The social worker recalled a case in which everybody was telling the woman what to do, and she was just looking forward to being called by her husband, who was a drug addict in jail. She was more worried about community rejection than her safety or wellbeing. In the opinion of the social worker interviewed: We try to do the impossible.… We all, professionals and practitioners, are sometimes so blind that we cannot see this simple fact. If she is not listened to, she feels there is no way out. Accompanying and listening requires skills, sensitivity and time, time that differs from the time provided by the criminal justice system. Knowing that her ability to help is limited, this social worker feels that, in the end, she is the one learning from victims. The criminal justice system is focused

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on making decisions based on rights and legal principles, but victims also need to be heard before opting, and professionals need to hear them before deciding on their clients’ needs and the responses to them. It also needs to be recognised that some Gypsy and migrant women do not see themselves as ‘victims’ as defined by the law. In any case, according to the social worker, they are much more than that. Arguing that there is a power imbalance, and that harsher and harsher legislation will solve gender violence, is not consistent with reality. For this social worker, even if it means a much more complex and long-­term perspective, an intersectional and community-­based focus might bring more understanding, safety and equality to Gypsy women’s lives. In relation to this, social services should consider whether a risk evaluation for the protection of minors always justifies the immediate removal of the baby after being born in the hospital, when both parents are considered addicts or have other kinds of problems, especially in light of the value and meaning of children in the Gypsy community.

Beyond political correctness and risk protocols, something is profoundly wrong in the conceptualisation of needs Real and potential IPV occupies a great amount of resources in the everyday criminal justice system and social services of Spain. Since the 1/2004 law, more attention has been given to the development of public policies in this area (Carrasco 2013). In several EU projects on best practice, it is said that the coordinated approach is one of the main strengths of the Spanish system. However, there are also shadows, and these affect immigrant women and Gypsy women in particular ways. Immigrant women are overrepresented in the penal and welfare systems, as are Gypsy women and men, even though in the Gypsy community gender violence is usually dealt with by some form of community mediation outside the law. If immigrant women under conditions of poverty, social exclusion and cultural patterns of patriarchy find it more difficult to file abuse complaints and make their victimisation more visible in society, their overrepresentation in the registered data of police and courts, and the difference with Gypsy (and Chinese) women rarely present in that data, can be explained. They suffer more serious acts of violence and abuse (like murder), while also being more controlled by public social services (and health services, when provided), which have an obligation to file abuse complaints. Non-­immigrant women may have other (private) services from which to seek help in dealing with violence, but immigrant women have neither the resources to pay for them nor their family’s or friends’ support. There are contradictions underpinning the Spanish legislation in that it simultaneously talks about individualised case management and risk assessment. In addition, the gap between principles and practice is clearly seen in the cuts

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made during the austerity period, which have particularly, and disparately, affected the health, housing, employment and social services systems (Briones-­ Vozmediano et al. 2014; Dalli 2014). In the end, the meaning of risk and the process of risk assessment are completely different when defined by public agents and by women themselves, particularly women of different cultures. The question is: what is defined as a risk of violence by potential victims from immigrant or ethnic minority communities? This is a crucial question, because its answer represents one of the main ways to prevent further violence and engage in safety and emancipation issues. Many immigrant and Gypsy women fear being cast out from their communities far more than do other women and at the same time they do not trust criminal justice or social services professionals. The iatrogenic risk of today’s risk management is forgetting the notion of relational autonomy or intersubjectivity beyond law. The Spanish 1/2004 law defines gender inequality as both the cause and effect of gender violence, but an intersectional perspective might be more adequate ‘to address the many ways through which the complex politics of race and gender shape the experience of justice’ (Ptacek 2009: 282).

Acknowledgements I am particularly grateful for the thoughts on my study given by Marijose Rubio and Yan.

Note 1 By counter-­reports we mean the cases where the male partner accuses the woman of (physical or psychological) violence against him and she is brought to court in a separate proceeding.

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158   Gema Varona Briones-­Vozmediano, E., Agudelo-­Suarez, A., Goicolea, I. and Vives-­Cases, C. (2014) ‘Economic crisis, immigrant women and changing availability of intimate partner violence services: a qualitative study of professionals’ perceptions in Spain’, International Journal for Equity in Health, 13: 1–9. Buchanan, A. (1999) ‘Risk and dangerousness’, Psychological Medicine, 29: 465–473. Bustelo, M. (2016) ‘Three decades of state feminism and gender equality policies in multi-­governed Spain’, Sex Roles, 74: 107–120. Carrasco, A. (2013) ‘Analysis of the first 8-years of the Spanish law of “gender violence”: 2004–2012’. Online. Available from: http://justiciadegenero.com/en/analysis-­of-8years-­of-gender-­violence-law-­in-spain/ (accessed 10 June 2017). Cartuyvels, Y. (2017) ‘L’internement de défense sociale en Belgique: entre soin, dangerosité et sécurité’, L’information psychiatrique, 93: 93–101. Castel, R. (1983) ‘From dangerousness to risk’, Actes de la recherche en sciences sociales, 47: 119–127. CEDAW (2015). Committee on the Elimination of Discrimination against Women Considers Reports of Spain. Online. Available from: www.ohchr.org/EN/NewsEvents/Pages/Display News.aspx?NewsID=16217&LangID=E#sthash.cEcI2v38.dpuf (accessed 10 November 2016). Dalli, M. (2014) ‘La violencia de género y el acceso de las víctimas extranjeras en situación administrativa irregular a los servicios sanitarios: consecuencias del Real Decreto-­Ley 16/2012’, Revista de Derecho Migratorio y Extranjería, 36: 39–54. De la Poza, E., Jódar, L. and Barreda, S. (2016) ‘Mathematical modeling of hidden intimate partner violence in Spain: a quantitative and qualitative approach’, Abstract and Applied Analysis. Online. Available from: www.hindawi.com/journals/aaa/2016/ 8372493/ (accessed 1 October 2017). Edgar, B. and Doherty, J. (2001) La femme sans-­abri en Europe: Parcours, services et experiences, Bristol: Policy Press. European Parliament (2016) Gender Equality Policies in Spain, an Update. Online. Available from: www.europarl.europa.eu/RegData/etudes/STUD/2016/583112/IPOL_STU (2016)583112_EN.pdf (accessed 10 June 2017). European Union (2014) Standardized Tools of Domestic Violence Risk Assessment: European Examples – Handbook for Police Officers. Online. Available from: http://eucpn.org/ sites/default/files/content/download/files/gp_eu_standardizedtoolsofdomesticviolence riskassessment1.pdf (accessed 10 June 2017). European Union Agency for Fundamental Rights (2014) Violence against Women: An EU-­wide Survey. Luxembourg: Publications Office of the European Union. Online. Available from: http://fra.europa.eu/en/publication/2014/violence-­against-women-­eu-wide-­ survey-main-­results-report (accessed 10 June 2017). European Web Site on Integration (2015) Spain: Gender Violence Statistics – Foreign Women Over-­represented Among Victims of Domestic Violence. Available from: https:// ec.europa.eu/migrant-­integration/news/spain-­gender-violence-­statistics--foreign-­womenover-­represented-among-­of-victims-­of-domestic-­violence (accessed 2 December 2017). Freixes, T. (2015) Mapping the Legislation and Assessing the Impact of Protection Orders in the European Member States (Poems). Online. Available from: http://poems-­project. com/ (accessed 10 November 2017). García, E. (2016) ‘La génesis de la política del gobierno central contra la violencia de género en España: ideas, prioridades y policy change’, in M. La Barbera and M. Cruells

Risk, migration and ethnicity   159 (eds), Igualdad de género y no discriminación en España: evolución, problemas y perspectivas (pp. 395–424), Madrid: CEPC. Kordaczuk-­Wąs, M. and Putka, M. (eds) (2012) Integrated system of monitoring cases of domestic violence: Spanish experience. Warsaw. Online. Available from: www.policja.pl/ download/1/186464/PublikacjaENGLISH.pdf (accessed 10 November 2016). López-Ossorioa, J. J., González, J. L., Buquerín, S., García, L.  F. and Buela-­Casal, G. (2017) ‘Risk factors related to intimate partner violence police recidivism in Spain’, International Journal of Clinical and Health Psychology, 17: 107–119. Martinez-­Roman, MA, Vives-­Cases, C. and Pérez-Belda, C. (2017) ‘Immigrant women suffering from IPV in Spain: the perspectives of experienced social workers’, Affilia, 32: 202–216. Menchón, P. (2015) Sobre la inhibición a denunciar de las víctimas de violencia de género. Online. Available from: www.violenciagenero.msssi.gob.es/en/violenciaEnCifras/­ estudios/investigaciones/2015/pdf/Inhibicion_Denunciar_VictimasVG.pdf (accessed 10 June 2017). Monahan, J. and Skeem, J. L. (2016) ‘Risk assessment in criminal sentencing’, Annual Review of Clinical Psychology, 12: 489–513. Naredo, M. (2012) ‘Los derechos de las mujeres migrantes ante la violencia de género en la pareja/expareja, Jornada Inmigración y violencia machista’. Online. Available from: www.euskadi.eus/contenidos/informacion/jornada_violencia_machista/es_jornada/ adjuntos/Ponencia%20de%20Maria%20Naredo.pdf (accessed 1 October 2017). Observatory Against Domestic and Gender-­Based Violence (2014) Informe sobre víctimas mortales de la Violencia de Género y de la Violencia Doméstica en el ámbito de la pareja o ex  pareja en 2013. Available from: www.poderjudicial.es/cgpj/es/Temas/Violencia-­ domestica-y-­de-genero/Actividad-­del-Observatorio/Informes-­de-violencia-­domestica/ Informe-­s obre-victimas-­m ortales-de-­l a-Violencia-­d e-Genero-­y -de-­l a-Violencia-­ Domestica-en-­el-ambito-­de-la-­pareja-o-­ex-pareja-­en-2013 (accessed 2 December 2017). OSCE (The Organisation for Security and Cooperation in Europe) (2014) Report by the Special Representative of the OSCE Chairperson-­in-Office on Gender Issues, Following her Visit to Spain, 11–13 November 2013. Available from: www.osce.org/cio/159346? download=true (accessed 2 December 2017). Peláez, A. and Villarino, P. (2016) Informe sobre violencia de género hacia las mujeres con discapacidad a partir de la macroencuesta 2015, Madrid: Cinca. Ptacek, J. (ed.) (2009) Restorative Justice and Violence against Women, Oxford: Oxford University Press. Rodríguez, M. L. (2013) ‘Effects of the economic crisis on gender equality: the Spanish case’. Online. Available from: www.upf.edu/documents/3298481/3410076/2013LLRNConf_Rodriguez.pdf/bffec262-dd7f-4d8a-a1d9-69deac51d9e8 (accessed 10 June 2017). Ruiz-­Péreza, I., Escribà-Agüird, V., Montero-­Piñar, I., Vives-­Casesg, C. and RodríguezBarrancoa, M. (2017) ‘Prevalence of intimate partner violence in Spain: a national cross-­sectional survey in primary care’, Atención Primaria, 49: 93–101. Salazar, O. (2016) ‘The fragility of gender equality policies in Spain’, Social Sciences, 5: 1–17. Smith, A. C. and LeVoy, M. (2015) Guía de la Directiva sobre las víctimas de la UE: promover el acceso de los migrantes irregulares a la protección, los servicios y la justicia. Online. Available from: http://picum.org/picum.org/uploads/publication/VictimsDirective_ES. pdf (accessed 10 June 2017).

160   Gema Varona Spanish Government (2013) National Strategy for the Eradication of Violence against Women (2013–2016). Available from: www.violenciagenero.msssi.gob.es/planActuacion/ estrategiaNacional/docs/Estrategia_Nacional_Ingles.pdf (accessed 2 December 2017). Spanish Government (2016) Social policy. Online. Available from: www.lamoncloa.gob. es/lang/en/espana/spaintoday2015/socialpolicy/Paginas/index.aspx (accessed 10 June 2017). Tudela, M. P. (2015) ‘Voces migrantes frente a la violencia de género: una investigación para la acción en San Francisco (EEUU)’, Alternativas: cuadernos de trabajo social, 22: 185–206. US Council of State Government Justice Center (2016) Risk and Needs Assessment and Race in the Criminal Justice System. Available from: https://csgjusticecenter.org/reentry/ posts/risk-­and-needs-­assessment-and-­race-in-­the-criminal-­justice-system/ (accessed 2 December 2017). Valero-­Garcés, C. (2016) ‘Aproximaciones desde la ética en la interpretación en casos de violencia de género’, Babel, 62: 67–85. Varona, G. and Martínez, M. A. (2016) ‘Las mujeres y el concepto de honra en el Archivo Histórico de la Sala Penal del Tribunal Supremo (1957–1978)’, Clio & Crimen, 13: 307–342. Vives-­Cases, C., Briones-­Vozmediano, E., Gil-­González, D., La Parra, D., Goicolea, I., Felt, E. and Ortiz-­Barreda, G. (2014) Preventing and Addressing Intimate Partner Violence against Migrant and Ethnic Minority Women: The Role of the Health Sector. Online. Available from: www.euro.who.int/__data/assets/pdf_file/0018/270180/21256-WHO-­ IntimatePartner-Violence_low_V7.p (accessed 5 April 2017). Wasileski, G. and Miller, S. L. (2014) ‘ “Bad” victims?: understanding social service providers’ responses to Roma battered women’, International Journal of Comparative and Applied Criminal Justice 38.2: 173–189. Wiener, J. B. (1998) ‘Managing the iatrogenic risks of risk management’, Risk, 9: 39–82.

Chapter 9

¿Que dirán? Making sense of the impact of Latinas’ experiences of intimate partner violence in New York City Yolanda Ortiz-Rodríguez and Jayne Mooney

On 26 September 1999, Gladys Ricart, who was originally from the Dominican Republic, was shot by her abusive ex-­partner, Agustin Garcia, on her wedding day – an event that is commemorated each year by the Brides March Against Domestic Violence in which Latina activists march through the streets of New York City in bridal gowns. They march in memory of Ricart, who had been stalked by Garcia after their relationship ended, and to raise awareness of intimate partner violence (IPV) within the Latino community. In the United States (US), IPV claims the lives of at least three women a day, with one in three women being at risk of violence from a husband or boyfriend, including ex-­partners, at some point in their lives (Vagianos 2015; Karlsson-­Ofori 2015). The individual and societal impact of IPV is immense. It is somewhat of a truism to restate the old adage that this form of violence has ‘no boundaries’ for the level that it cuts across age, social class, sexual orientation, racial and cultural groups and communities is well documented. However, women are not necessarily affected in the same way, and to truly make sense of IPV it is imperative that the specificity of experience is understood. With this in mind, this chapter focuses on the need to be cognisant of ‘difference’ between women and relates the findings of a research study on the impact of IPV on foreign-­born Latinas and US-­born Latinas in New York City and their experiences in seeking help.

Acknowledging ‘difference’ The late 1980s and 1990s witnessed an intense period of reflection and debate for many feminists and activists on how feminism and the battered women’s movement had conceptualised male violence. A concern with all women’s experiences, the centrality afforded to patriarchy1 and the need for collective action were seen as having glossed over the significance of other forms of oppression, especially those related to race, ethnicity, immigration status and class, and had marginalised the experiences of women of colour.2 The need to recognise the often oppressive nature of the state in the lives of women of colour was regarded as particularly important. Previous generations of feminists had

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been highly critical of the lack of intervention by the state in cases of IPV. Yet, the push for increased criminalisation risked more aggressive policing leading to the ‘use of force, mass incarceration, and brutality’ in marginalised communities (Ritchie 2000: 1135), and also the arrest of victims. Moreover, as Natalie Sokoloff and Ida Dupont (2005: 43) comment, ‘as a member of a devalued racial identity’ some women of colour ‘may fear that calling the police will subject their partners to racist treatment by the criminal justice system as well as confirm racist stereotypes’ with regards to criminality. Conceptions of the family were seen as overly simplistic and lacking relevance to the lives of many women. For, although the family is undoubtedly a site of male violence, it also functions as a place of sanctuary, support and resistance to racism, and it is the violence and coercion of a racist state in terms of immigration laws and police practices that are potentially more worrisome for women of colour (Rice 1990). State intervention remains a contentious area of policy that has the potential to make the situation worse for the women concerned and their communities. Services were additionally found to be seriously lacking when it came to helping women of colour, having largely evolved from the experiences of women who did not share the same racial or class background. In the late 1980s, Kimberlé Crenshaw coined the term ‘intersectionality’ to clarify how the lives of women of colour are shaped and structured by multiple systems of oppression, especially those based on gender, race, class, age, sexual orientation and religion. Systems of oppression and the inequalities that they generate were not to be seen as acting singularly – as in the patriarchy equals male violence equation – or in isolation from each other, but ‘are multiplicative, inextricably linked, and simultaneously experienced’ (Burgess-­Proctor 2006: 31). While the notion of intersectionality is today widely debated and applied,3 it has become one of the most recognised conceptual paradigms associated with contemporary feminism in the US (Fernandes 2010) and has proved a powerful analytical tool in feminist discourse on the lived experiences of IPV of women of colour and women from other marginalised groups.4 There is, as a result, a much greater awareness of how the lives of women of colour and other marginalised women are affected by IPV. However, significant gaps remain in our understanding, especially with respect to Latina survivors,5 their narratives of abuse, the barriers to seeking help that they face, and their needs in specific locales, social and political contexts.

The study Over 2.4 million Latinos6 reside in New York City, representing just under 30 per cent of the total population. This is more than in any other city in the US. The majority are of Puerto Rican (53 per cent), Dominican (25 per cent) and Mexican (13 per cent) descent (Department of City Planning, NYC, 2016). This research explored the stories of 32 help-­seeking Latinas7 who were receiving services in six domestic violence programmes.8 Our approach is

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located within the theoretical framework of intersectionality. The women’s countries of origin included Puerto Rico, the Dominican Republic, Mexico, Honduras, Guatemala and El Salvador. The majority of women reported an annual income of less than $10,000 a year, which put them below the federal poverty levels for New York State (New York State 2016) and had dependent children under the age of 18 years. Both poverty and cultural factors are recognised as having contributed to the social invisibility of Latinas in the US (Vidales 2010). Although all the women in the study identified with being Latina, differences were found based on sub-­group identity and immigration status (foreign-­born vs US-­born), which speaks to the importance of considering how social locations impact and shape Latinas’ experiences of IPV.

Narratives of abuse The participants were asked about the behaviours that they associated with IPV and what it was they had experienced. As their narratives unfolded, the women’s disclosures of abuse, cultural beliefs and descriptions of violent behaviours revealed both similarities and differences between foreign-­born Latinas and US-­born Latinas. The study uncovered the degree to which coercive control tactics were used against the women and the impact of stalking behaviours. Defining ‘violence’ The vast majority of the participants saw physical, sexual, emotional and economic abuse and other controlling behaviours as aspects of IPV. However, the women’s utilisation of broad definitions of violence was largely the result of having lived through such abuse experiences. Thus, Irma9 talked about how she used to think that ‘domestic violence was only when your partner hit you, not yelled at you’, but by the time of the research she associated it with ‘aggression, jealousy, possessiveness, checking your phone and not letting you go out with anyone’. The difficulties that the women faced in making sense of the violence were acknowledged: Giselle referred to it ‘as a complex situation where one may not even realise they are in it’ due to being ‘focused on alleviating the situations and living day to day’. The range of violence experienced Women reported having experienced a wide range of violent behaviours, with most describing physical violence as having occurred alongside other types of abuse, such as sexual, emotional and economic. The violence included verbal abuse, which made them feel ‘devalued’ and ‘worthless’, in addition to being threatened with objects and weapons, hit with objects, physical violence in the home, on the street and/or in front of family and friends, as well as sexual abuse. Physical and emotional violence were experienced by all of the women across

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the sub-­group categories, with the foreign-­born women, especially those from Mexico, recounting higher rates of sexual violence. The majority of foreign-­ born women also reported economic abuse, in comparison to half of the US-­born. Given the gendered patterning of IPV, it is not surprising that, in terms of the nature of violence, many of the participants’ descriptions bear a similarity to those of women from other social and cultural backgrounds (see Mooney 2000; Liang et al. 2005; Yoshioka et al. 2003). However, to be ‘cognizant of “difference” ’ means to begin from the position of being ‘Latina’, and in this case the lived experiences of Latinas in NYC, regardless of similarities with other women. Coercive control tactics In line with women’s definitions of ‘violence’, participants reported that their experiences formed part of a pattern of controlling behaviours; this is commonly referred to in the literature as the use of ‘coercive control’ tactics on the part of the abuser. Raising awareness of the extent of coercive control and the effect that it has on women is an important feature of feminist research on IPV in the contemporary period. The concept of ‘coercive control’ was developed by Evan Stark, who described it as ‘the most widespread and devastating strategy men use to dominate women in personal life’ (2007: 8). Coercive control attempts to destroy women’s sense of their autonomy and to secure men’s privilege in the private sphere (2007: 8). ‘Coercion’ tactics of intimidation are used to ‘compel a particular response’ (Velonis 2016: 1036) and ‘control’ tactics are used to ‘compel obedience’ (Stark 2007: 228–229). To underscore the impact that this ongoing pattern of intimidation has on women’s lived experiences, some advocates and scholars have adopted the term ‘intimate terrorism’ (Velonis 2016). Some of the women recalled the level of coercion and control that characterised their violent relationships and the isolation that resulted from this: He prohibits … from going out with friends, is always checking the time, the one who yells, you know, aggressive. (Jessica) Humiliate you, dominate you, tell you what you need to wear; how to dress yourself. (Thalia) He didn’t trust me, he would go through my things. Would call me all of the time … I don’t know. I couldn’t breathe. Even to go get my children he would say, ‘No, no. I will bring them to you … I will buy you the milk …’. Everything, do you understand? You couldn’t even step outside. (Nancy)

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The majority of women talked about being constantly on the receiving end of negative comments about their appearance, which were aimed at diminishing their self-­respect, as well as criticisms of their ‘performance’ as wives and especially as mothers. The acceptance of gender and cultural scripts regarding what it means to be a ‘woman’ and a ‘mother’ frequently affected the form of the behaviours and the impact they had on the participants. All of the women had been subject to such patterns of violence. However, foreign-­born women were more likely to emphasise being deprived financially or prevented from accessing basic necessities such as food and clothing; they were also more likely to be subjected to death threats and surveillance behaviours, especially stalking. Larissa said, ‘He used to say he would kill me if I left him’, Jenny’s husband frequently threatened that he would ‘put a bullet’ in her head, and Lissette’s partner threatened both her son and elderly mother when she had him arrested. Threats of this nature enabled the abusers to exert and maintain control over the women, even when they were not physically present. Lissette described her experiences as ‘terror in my own home’. Stalking This chapter began with the case of Gladys Ricart, who was stalked and eventually murdered by her ex-­boyfriend. Stalking behaviours emerged as a consistent theme throughout many of the participants’ narratives. For some of the women, stalking was used as a surveillance tactic while in the relationship; for others, it began after the relationship ended. Esperanza described her experiences: I broke up with him because he showed up at my house unexpectedly, unwanted; he was not invited. At that point was that he became very aggressive, stalking, threatening, very erratic and, um, very unpredictable. Multiple texts, calls, um, non-­stop. At times, the constant stalking behaviour made it hard for the women to find a safe place to stay: I was actually moving from house to house with my kids, and he was finding out everywhere I was. He was watching me; he had other people watching me. (Taylor) The constant state of fear, and of being followed and watched, helped to create unsafe and non-­secure spaces for women and their families, making it hard for them to move on and away from their abusers.

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Compounding the impact of violence The role of culture and the family In considering culture and the family in this context, we are acutely aware that this is difficult terrain to navigate due to the potential for negative stereotyping about Latinas and Latino families. Caution must be exercised, especially given the current political situation in the US, and the degree to which those from non-­white backgrounds are ‘othered’ and demonised and the way that this demonisation is being played out in immigration policy. Nevertheless, we would not be true to the voices of the women in our sample if the impact of culture and the family on their lived experiences was not explored. Culture and cultural factors play a significant role in how women define and describe their experiences of violence (Vidales 2010), how they disclose violence, and why some women see it as a ‘private matter’ (Erez, Adelman and Gregory 2009). In Latino cultures, women are socialised into gender ideologies that help to promote and perpetuate IPV; many have also been socialised to accept violence as a normal occurrence (Perilla 1999; Adames and Campbell 2005). In addition, it has been documented in the literature that many Latina victims of IPV are ‘encouraged’ by family members to endure the violence in their relationships for the sake of their family (Postmus et al. 2014). The majority of the foreign-­born participants, and this was particularly true of Mexican women, spoke of being socialised to accept violence in their relationships for the sake of maintaining the family unit, as is evident from the comments below: My mother was one of those that used to say that marriage is for life. The son-­in-law that walked in first was the only son-­in-law.… When I was a child, my mother would say to me, ‘(If ) he hit you, he hit you. If they (partners) hit you it’s because they love you. If your partner doesn’t hit you, or yell at you, well he doesn’t love you’. I was raised that way. My father used to hit my mother and she would always take it. (Nilsa) In our country [Mexico] unfortunately, we have to, like our parents and grandparents used to say, ‘You get married, it’s for life. You have to be a good wife, you have to do this, you have to do that. I used to think, ‘I married him so I can’t leave him … it’s for life’ … that’s how we are raised over there (Mexico). If I were over there, I would not be able to leave him. My mom used to tell me, ‘You married him, you have to stay and deal with it’. (Jarisbeth) Some of the participants’ narratives revealed how any attempt to deviate from cultural gendered scripts, especially leaving or attempting to leave an abuser, would put them at risk of being criticised and ostracised by friends and family.

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Indeed, the shaming and threats of (and actual) ostracising that occur should be seen as further examples of coercive control tactics that are utilised by the abuser, and also by families and community members. The use of coercive control tactics by extended family members, as well as the abuser’s perception of the benefits of these behaviours, is currently the subject of further research by Ortiz-­Rodríguez (forthcoming 2018). Concerns were further raised by many of the women over what people will say – ‘the gossip’: Qué dirán? … What will people say? In my situation, well, my family turned their backs on me [when she left her abuser]. (Irma) Sometimes, women think, ‘What will people say? My relatives say? My friends? My neighbors?’ You know, ‘hablarias’ [gossip]. (Isabelle) More than anything the ‘what will people say?’ … That’s how it is in my country [Mexico] the woman has to be a homebody, and only in the house, can’t go out, can’t have fun because that is bad and the people will criticise her. (Jarisbeth) Given the high value placed by Latinos on the family and preserving the family, the fear over what people will say serves to silence the woman, ensures her compliance and renders the violence a ‘private’ matter. This is underscored by the importance of cultural concepts such as familismo (familism) and marianismo (marianism) in shaping the lives of Latinas. These two concepts have been explored in previous studies on Latinas and IPV (Gonzalez 2010; Postmus et al. 2014). Familismo is one of the core elements of Latino culture. Antshel discusses how familism refers to the strong identification Latinos make with families and how they ‘consider the total family system as a supportive, integrated network [where] as a group [family] has precedence over individual interests’ (2002: 439). This identification ‘is characterized by strong feelings of loyalty, reciprocity, and solidarity’ (Yoshioka et al. 2003: 172), but can effectively create a barrier to women seeking assistance from services (Vidales 2010). Although familism may be perceived as ideal or noble, it can also serve to help perpetuate IPV as the women may be reluctant to leave the abuser in order to keep their families intact or because they fear reprisals from their families. Marianismo refers to the ideal of women’s virtue and spirituality within Latino culture, which lends itself to women engaging in self-­sacrificing behaviours for their children and spouses (Altarriba and Santiago-­Rivera 1994: 394). Moreover, the Latino cultural concepts of personalismo (personalism), confianza (trust) and respeto (respect) are found to have important implications

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for effective and culturally competent service delivery for Latina survivors of IPV. Personalismo refers to relationship and spatial closeness, which, in Latino culture, facilitates the disclosure of uncomfortable topics. Respeto refers to the behaviours expected by Latinos and is determined by ‘age, gender, and authority’ (Antshel 2002: 440). Confianza, on the other hand, is not a given – it is established by showing a genuine interest in the life of the person, and being personable and supportive (Belknap and Sayeed 2003; Denham et al. 2007). The significance of these concepts was evident in the statements made by some of participants when they discussed whether or not they felt able to speak freely about their experiences with the staff at their respective domestic violence programmes and their level of satisfaction with these programmes: They aren’t judging me. I feel that I can trust them with what I wouldn’t trust anyone else with. (Thalia) They make me feel like I am in my house. (Irma) Given the emphasis that Latinos place on these cultural ideals, it is imperative to consider how they impact and/or influence the help-­seeking behaviours of Latinas, particularly when help-­seeking is perceived as a threat to the family unit. Language proficiency is, likewise, important when exploring the impact of cultural factors on the help-­seeking behaviours of Latinas. The literature speaks to the disadvantage some Latinas in the US face as a result of being limited and/ or deficient in the English language (Vidales 2010; Reina and Lohman 2015). Language proficiency is considered paramount given that language is the mechanism used to convey and help shape our experiences (Trinch 2001, 2003; Cruz et al. 2008). As such, being able to communicate with others in our native/preferred language is essential. This was especially true for the majority of the study participants as they needed to be able to express exactly what happened to them in order to access services. Overcoming language barriers, however, is only part of what is needed: having an understanding of and incorporating cultural concepts into service planning are key to the provision of culturally competent services to Latina survivors of IPV. The socioeconomic context As previously indicated, the majority of women in this study had an income of less than $10,000 a year. The low living wages of Latinas foster financial dependency on their batterers, ‘constrain [their] safety strategies’ (Reina and Lohman 2015: 480) and contribute to their invisibility in society (Vidales 2010) – this is especially true for immigrant Latinas as they may not have access to resources available to US-­born Latinas.

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The majority of the foreign-­born participants, more so than the US-­born participants, in this study reported economic dependence as the main reason why women remain in abusive relationships. The need for financial security over safety was discussed by Jenny, who was living in a domestic violence shelter at the time of being interviewed. Jenny’s comments were similar to those made by many of the participants and are indicative of the degree to which financial concerns impinge on decision-­making in terms of help-­seeking: When I thought about going back it’s that … ‘Oh, he wasn’t that bad’ … if I have money to eat; but if I don’t have money to get to my son’s appointment, or the simplest thing, like to celebrate my son’s birthday … like, I start feeling bad. My son has nothing to do with this, and he doesn’t deserve to suffer. So I’ll go back and I know that in a week or so I’ll have like a hundred twenty or hundred and fifty dollars in my pocket. That’s what gets me thinking. The women identified feelings of insecurity as resulting from a loss of familial support, being homeless or forced to live in a shelter, a lack of healthcare and financial need. Equal proportions of the foreign-­born (25 per cent) and US-­born (25 per cent) participants pinpointed insecurity as a negative consequence associated with seeking help for their situations. However, Mexican women were much more likely than women in any other sub-­group to identify ‘increased insecurity’ as a negative consequence of help-­seeking. Homelessness/shelter living is a not an unpredictable outcome of help-­ seeking as many of the women were financially dependent on their abusers and did not have family nearby or living in the US who might have been able to provide them with temporary accommodation. For other participants, relying on family was not an option as they were ostracised for breaking with traditional norms and expectations around marriage. Thus, they were left with limited housing options and, among the participants who had left their abuser, they were living in a shelter, living in someone else’s home or renting a room at the time of the interviews. Not surprisingly, women placed a great deal of emphasis on the importance of achieving security and stability in their lives, in the form of suitable and affordable housing, safety and ‘peace of mind’. I need a little care to take my son to school, a job … basically, just peace of mind. (Lisette) For him, just him, to keep away from me and not bother me or tell my children that he still loves me and wants to be with me; or have people watching me. (Taylor)

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Institutional factors: ‘fairy dust does not exist in the judicial system’ The study drew attention to the frequently difficult relationship that Latina survivors had with the state, in the form of state-­run agencies such as the police, District Attorney’s Office, courts and the New York State Administration for Children’s Services. As part of any research on help-­seeking populations, the procedures used by the police – as the first agency on the scene in most cases – need to be carefully examined. Gaining an understanding of how the police response is perceived by those experiencing IPV can highlight what is working, what is not working and the improvements that need to be made. Despite there being some provisions in place within the NYPD to assist those experiencing IPV, for example, in the form of specially trained domestic violence officers, participants were overwhelmingly critical of police, especially of the police officers called to the scene following a 911 call. When my parents got there they started calling the police with me. My father told them everything and they told him that they are on their way. We called three times. We saw cop cars drive by but didn’t stop and the ones that did stop didn’t even come out of the car. Taylor, likewise, expressed her frustration at the poor response time: The police, I think they should just not wait until the person is laying there bleeding, practically dead, to actually do something. They should actually, if a person calls and says, ‘You know this person is violating an order of protection’ make it, you know, a matter of minutes instead of hours. When the police did arrive on the scene their response was frequently criticised for being ineffective. Jarisbeth, who had an order of protection, found that after the first time she called she was not given a report of the incident; and the second time they arrested her abuser but did not charge him – ‘They told me “NO”. “No physical aggression, no violation” ’. The difficulty facing women in NYC is that they typically have to document their victimisation via a police report in order to be eligible for support services, including shelter or alternative housing. Women felt that the police did not take them or the danger they were in seriously. Thalia related how the police ‘laughed at me’ and ‘they came and they took him out and said to him, “Oh, you will come back later” ’. Hence, it was hardly surprisingly to then hear her say, ‘I swore to never call the police again’. The lack of police action heightened women’s sense of vulnerability and fear – ‘I felt hopeless’ (Maribel). The next stage in the criminal justice process following arrest of the abuser is progressing the case through the District Attorney’s Office: here, again, some women felt let down by the response. Esperanza reported that they (staff at the

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District Attorney’s Office) were ‘very cold, very dismissive’ and ‘there was no confidentiality … I had to say my story at the front desk and I think that is very disgusting’. The women’s lack of control over what was happening was cited as a particular problem, especially for those who had difficulty with or spoke no English. The need to rely on the services of an interpreter meant that conversations were often held between the lawyer and interpreter, with the decisions simply being relayed back to the woman. As Irma was told in her case, ‘This is what is going to be done and this is how it is going to be done’, with next to nothing in the way of input from her. As a result of their experiences, some of the women reported feeling deceived by the appearance of ‘good’ support services or ‘promises’ of help for women in their situation: It’s a disappointment to see the resources that they claim that is out there, but it’s not as easy as they think. They’re quick to [say], ‘Oh, here’s this number’; ‘Oh, contact this person’. But when you go through those channels sometimes they don’t even help you. It’s like you’re just another number; just another case. You’re like, ‘Okay, another one to the big pile that’s there’. So many people that need help but there’s nothing actually being done. And only one out of ten actually get the help that they need. The rest go through frustration and they lose the hope and just pull away. (Maribel)

Exacerbating personal insecurity: fears of deportation From our discussion of the impact of cultural, socioeconomic and institutional factors on the lived experiences of IPV among Latinas, a picture of precariousness thus emerges, with women expressing their feelings of insecurity due to the ever-­present threat of violence; worries over money, housing, their children, and losing family and community support; language barriers; and the poor treatment by state agencies, which left them ‘isolated’, ‘unprotected’ and ‘abandoned’. For undocumented foreign-­born women, feelings of personal insecurity are exacerbated by concerns over their immigration status and the threat of deportation – fears that are often exploited by men. As one of the participants, Julia, stated, ‘I was afraid, because he used to tell me that if I called the police that he would call immigration and I wouldn’t see my children again’. The Mexican women in our study were most likely to voice their fears over deportation. Previous research has shown that threats, such as those made against Julia, are common and work to prevent the woman from leaving the relationship and seeking help (Erez, Adelman and Gregory 2009; Lockhart 2017). In Erez, Adelman and Gregory’s study, 75 per cent of the women interviewed noted how abusers, especially if they are documented or in the process of becoming so, use

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women’s immigration status to ‘force them into compliance’ (46). These authors also make the point that ‘an immigrant woman’s dependency on her male partner elevates his position of dominance over her’ and, ‘at the same time, legal dependency represents a macrostructural vulnerability that systematically marginalizes immigrant women by limiting their access to goods and resources, such as work, social services, protection under the law and so on’ (46). The present research was conducted during the presidency of Barack Obama, which saw unprecedented numbers of undocumented immigrants deported: over three million between 2009 and 2016, mostly to Mexico (Barros 2017). Although there are protections in place for immigrant women under the Violence Against Women Act of 1994, allowing for self-­petitioning for immigrant visas, the granting of temporary legal status and assistance with work authorisation, this did not seem to significantly alleviate women’s concerns, which was not unexpected given their poor treatment by state agencies. Under Donald Trump’s presidency the situation facing undocumented women has become more worrying. As the self-­proclaimed ‘law and order’ and protector of ‘national security’ candidate, Trump made deportation and restrictions on immigration a central pillar of his campaign and administration’s policy. Certainly, his anti-­Mexican rhetoric and pledge to build a wall along the border with Mexico, which dominated his campaign, is likely to have compounded the fears of Mexicans living in the US. In February 2017, memos released by the then Secretary of Department of Homeland Security, John Kelly, gave, as Matt Ford (2017) wrote in The Atlantic, the Immigration and Customs Enforcement Agency (ICE) ‘sweeping latitude to target “removable aliens” for deportation, effectively making most of the estimated 11 million undocumented immigrants in the U.S. priority targets’. The guidelines are so broad that ‘almost any brush with the American law-­enforcement system’ potentially makes ‘an undocumented immigrant a target for removal’. There is little mention of the situation of victims of crime and confusion exists over what protections remain in place (Lockhart 2017). The recently published 2017 Advocate and Legal Service Survey Regarding Immigrant Survivors, which collected responses from over 700 advocates and attorneys from across the country, has underscored the impact that the new administration is already having on immigrant survivors of IPV, sexual assault and human trafficking. It found that 78 per cent of those surveyed said that survivors expressed concerns about contacting the police due to fears that they might be deported; 75 per cent reported that survivors were reluctant to go to court for a matter related to their abuser, and 43 per cent said that many of the survivors with whom they had worked had dropped criminal or civil cases related to their abuse because they were frightened of potentially exposing themselves to law enforcement (Tahirih Justice Center 2017). The survey report also documented the case of a teenage survivor of IPV who attempted suicide because she feared that the offender would report her family to ICE (Tahirih Justice Center 2017). Even though New York City is a designated

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Sanctuary City for undocumented immigrants, which means that local police and officials will not automatically cooperate with ICE agents, people can still be picked up by ICE in a number of places, including outside court houses (Lockhart 2017). As one former prosecutor in the Brooklyn District Attorney’s Office, Wanda Lucibello, said, If the perception is that there is a greater risk if you go to the police, you are going to be less likely to do so, and you are more likely to stay in an abusive relationship until you need to seek treatment at a hospital. She added that ‘It’s really the opposite of what anyone should want. All of this strengthens the abusive partner’ (Medina 2017). And, as we have seen, this is in the context of a local police response that has been identified as problematic. There is, of course, a certain irony that the moral panic that has occurred over terrorism in the US and the ensuing argument for the need to tighten up national security has left undocumented women at greater risk of intimate ‘terrorism’ and heightened their feelings of personal insecurity.

Conclusion This study contributes to our understanding of the lived experiences of Latina survivors of IPV in New York City. It focused on how women make sense of the types of violence they encounter, the degree to which cultural and socioeconomic factors impinge on them, and the obstacles they face in terms of managing their risk of further violence and seeking help. Fears of being ostracised by families and communities, a lack of both financial means and control over their situations, and the poor response of state agencies all contribute to their feelings of personal insecurity and worries over achieving stability for themselves and their children – factors that were especially pressing for the foreign-­born women in the sample. It is beyond the scope of this chapter to delve into the specifics of policy but, needless to say, it is imperative that proposals for change must start with what women themselves are saying. Feminists have long advocated that support services should be women-­centred. Yet, Latinas in NYC report a lack of control over their help-­seeking and are not only disempowered by state interventions but are also sometimes rendered less safe as a result. By exploring what the women themselves had to say, this study has revealed that it is women who know what is needed to alleviate their situations and what amounts to effective service provision. Throughout this research, women stressed the importance of culturally competent services that address language challenges and take account of the cultural and gender scripts that shape the lives of Latinas/os. The specificity of their experience must be understood and caution needs to be exercised to ensure that the approach to policy is not that of ‘one size fits all’. However, women-­centred and culturally competent services are typically short-­term solutions, which frequently lack an appropriate level of resourcing.

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What is needed is a substantial political commitment at both a local and national government level in order to effect real social change. Unfortunately, President Trump’s emphasis is not on the ‘domestic’ situation of women – whether related to violence, healthcare or reproductive rights – but on the shoring-­up of US borders and advancing an aggressive policy of deportation.

Notes   1 It should be noted that patriarchy has not been utilised in either political (Pateman 1988) or feminist theory in a simple or unified manner (Walby 1990). And, as is implied here, its usefulness as a term has been questioned, particularly in relation to our understanding of how other systems of oppression are conceptualised. However, in her 2015 book Radical Feminism: Feminist Activism in Movement, Finn Mackay underscores the continuing relevance of the concept of ‘patriarchy’ for understanding the history of women’s oppression.   2 We have tried to largely keep with the language used by the authors and activists that we cover. In the US, it is common to use ‘people of colour’, which is seen as encompassing ‘all/any peoples of African, Latino/Hispanic, Native American, Asian or Pacific Island descent’, with the intention of being all inclusive (Malesky 2014). Yet, it is necessary to be aware that inclusive language can prevent discussion of ‘difference’ – a theme of this chapter.   3 See Walby, Armstrong and Strid (2012).   4 As a conceptual tool, intersectionality has been informed by multiracial and multicultural feminism and critical race theory (Baca Zinn and Thornton Dill 1996; Burgess-­Proctor 2006).   5 There is debate within the feminist literature over whether to refer to women as ‘victims’ or ‘survivors’ of men’s violence. The term ‘victim’ can be seen as implying a passive response to violent incidents and their aftermath (Kelly 1988; Mooney 2000). In this chapter we choose to use ‘survivor’ as many of the women had left or were in the process of leaving their violent partners, and in acknowledgement of the resilience shown by the women in the face of such difficult circumstances.   6 ‘Latino/Latina’ and ‘Hispanic’ tend to be used interchangeably in the literature. However, we reject Hispanic for – while often seen in policymaking circles and in mainstream academic journals – it recalls the colonisation of Latin America by Spain and Portugal and the violence associated with this time. But, as with the term ‘people of colour’, we need to be aware that ‘Latino/a’ potentially obscures ‘difference’ for its usage conceals the ‘different cultures and sociopolitical histories’ between the people and different regions and countries of Latin America (Garcia-­ Preto 1996: 142).   7 We are aware of the limitations of this study in terms of sample size. It was primarily designed to give an indication of Latinas’ lived experiences of IPV in NYC and to pave the way for future research in this area. Nevertheless, we argue that the women interviewed are experts in all that embodies being a Latina victim/survivor of IPV; they have a unique knowledge that can help to inform policy and the development of appropriate services.   8 The six domestic violence programmes were located in three of the five boroughs of New York City: Manhattan, Bronx and Queens.   9 Pseudonyms are used throughout.

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176   Yolanda Ortiz-Rodríguez and Jayne Mooney Lockhart, P. R. (2017) ‘Women are now living with the fear of deportation if they report domestic violence’, Mother Jones, 25 May. Available from: www.motherjones.com/­ politics/2017/05/immigrant-­sexual-assault-­domestic-violence-­survivors-fear-­enforcementsurvey/ (accessed 14 June 2017). Mackay, F. (2015) Radical Feminism: Feminist Activism in Movement, London: Palgrave Macmillan. Malesky, K. (2014) ‘From “colored” to “minorities” to “people of color” ’, NPR, 30 March. Available from: www. npr.org (accessed 1 August 2016). Medina, J. (2017) ‘Too scared to report sexual abuse: the fear – deportation’, New York Times, 30 April. Available from: www.nytimes.com/2017/04/30/us/immigrants-­ deportation-sexual-­abuse.html (accessed 1 July 2017). Mooney, J. (2000) Gender, Violence and the Social Order, Basingstoke: Palgrave Macmillan. New York State (2016) Federal Poverty Guidelines. Available from: www1.nyc.gov/assets/ ochia/downloads/pdf/federal-­poverty-guidelines-­2016.pdf (accessed 2 July 2017). Ortiz-­Rodríguez, Y. (forthcoming 2018) ‘¿Hasta dónde alcanza? Exploring abuser and victim perceptions of the extent and use of coercive control by their families and communities’. Pateman, C. (1988) The Sexual Contract, Cambridge: Polity Press. Perilla, J. L. (1999) ‘Domestic violence as a human rights issue: the case of immigrant Latinos’, Hispanic Journal of Behavioral Sciences, 21(2): 107–133. Postmus, J. L., McMahon, S., Silva-­Martinez, E. and Warrener, C. D. (2014) ‘Exploring the challenges faced by Latinas experiencing intimate partner violence’, Journal of Women and Social Work, 29(4): 462–477. Reina, A. S. and Lohman, B. J. (2015) ‘Barriers preventing Latina immigrants from seeking advocacy services for domestic violence victims: a qualitative analysis’, Journal of Interpersonal Violence, 30: 479–488. Rice, M. (1990) ‘Challenging orthodoxies in feminist theory: a black feminist critique’, in L. Gelsthorpeand and A. Morris (eds), Feminist Perspectives in Criminology (New directions in criminology series), Milton Keynes and Philadelphia: Open University Press. Ritchie, B. (2000) ‘A black feminist reflection on the antiviolence movement’, Signs, 25(4): 1133–1137. Sokoloff, N. J. and Dupont, I. (2005) ‘Domestic violence at the intersections of race, class, and gender: challenges and contributions to understanding violence against marginalized women in diverse communities’, Violence Against Women, 11(1): 38–64. Stark, E. (2007) Coercive Control: How Men Entrap Women in Personal Life, New York: Oxford University Press. Tahirih Justice Center (2017) Key Findings: 2017 Advocate and Legal Service Survey Regarding Immigrant Survivors. Available from: www.tahirih.org/wp-­content/uploads/2017/05/2017Advocate-­and-Legal-­Service-Survey-­Key-Findings.pdf (accessed 1 June 2017). Trinch, S. L. (2001) ‘Managing euphemism and transcending taboos: negotiating the meaning of sexual assault in Latinas’ narratives of domestic violence’, Text, 21(4): 567–610. Trinch, S. L. (2003) Latinas’ Narratives of Abuse: Discrepant Versions of Violence, Philadelphia, PA: John Benjamins. Vagianos, A. (2015) ‘Thirty shocking domestic violence statistics that remind us it’s an epidemic’, Huffington Post, 13 February. Available from: www.huffingtonpost.com/ 2014/10/23/domestic-­violence-statistics_n_5959776.html (accessed 10 June, 2017).

¿QUE DIRÁN?   177 Velonis, A. J. (2016) ‘ “He never did anything you typically think of as abuse”: Experiences with violence in controlling and non-­controlling relationships in a non-­agency sample of women’, Violence Against Women, 22(9): 1031–1054. Vidales, G. (2010) ‘Arrested justice: the multifaceted plight of immigrant Latinas who faced domestic violence’, Journal of Family Violence, 25(6): 533–544. Violence Against Women Act of 1994. Available from: www.gpo.gov/fdsys/pkg/BILLS-­ 113s47enr/pdf/BILLS-­113s47enr.pdf (accessed 15 June 2017). Walby, S. (1990) Theorizing Patriarchy, Oxford: Blackwell. Walby, S., Armstrong, J. and Strid, S. (2012) ‘Intersectionality: multiple inequalities in social theory’, Sociology, 46(2): 1–17. Yoshioka, M. R., Gilbert, L., El-­Bassel, N. and Baig-­Amin, M. (2003) ‘Social support and disclosure of abuse: comparing South Asian, African American and Hispanic battered women’, Journal of Family Violence, 18(3): 171–180.

Part III

Everyday security and criminal justice questions

Chapter 10

The criminalisation of femicide Thiago Pierobom de Ávila 1

Introduction Sixteen Latin American countries criminalised femicide after the Inter-­ American Court of Human Rights (IACHR) judgment in the case Gonzalez and others vs Mexico (also known as the Cotton Field case). This decision recognised that the women’s killings in that case were motivated by gender discrimination and that the Mexican state had been ineffective in preventing and punishing these crimes. In 2015, Brazil introduced the crime of femicide, in line with the 2006 Maria da Penha Law, which sought to address violence against women. These laws are designed to bring a ‘gender lens’ to dealing with crimes against women, prevent ‘honour killing’ defences in cases of intimate partner homicide and avoid impunity for crimes of violence against women, as well as highlighting the importance of policies aimed at enhancing gender equality. This chapter will compare statistics on femicide in Brazil and other countries, offer an overview of the femicide law reform movement in Latin America, explain the rationale for the new legislation, analyse its implementation, and consider the arguments for and against making femicide a specific crime. It argues that renaming and labelling gendered killings of women as femicide is an important strategy to better recognise and understand such phenomena.

International data on the killing of women From 2010 to 2015, 64,000 women on average were killed every year in the world (Small Arms Survey 2016). Although the number of masculine violent deaths is higher, female killings usually happen in a specific context. Almost one out of two murdered women is killed by their current or ex-­partner, worldwide, while this ratio is one in 20 for men (UNODC 2014: 14). Among the 25 countries with the highest rates of killings of women in the world, 14 of them are Latin American or Caribbean (Small Arms Survey 2016), making it the region with the highest rates of violent deaths of women in the world. According to Quiñones (2017), ‘in Latin America we have a culture of high tolerance towards violence against women and girls’. This region is also

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characterised by high levels of poverty, social inequality, racism, postcolonialism and exploitation. This matrix of hierarchical and exploitative relations is also related to the macho culture, which generates high levels of gender inequality. Specifically in Brazil, in 2013 alone, 4762 women were killed, which is equivalent to a rate of 4.8 female deaths per 100,000 people, an average of 13 women killed per day. The rates of female killings in Brazil increased by 21 per cent from 2003 to 2013. Approximately 50 per cent of these deaths were committed in the context of family violence, and 33.2 per cent in the context of intimate partner violence (IPV) (Waiselfisz 2015). Brazil is fifth in the international ranking of female homicides (see Table 10.1). Many studies point to an alarming ‘chronometer’ of gendered violence in Brazil: there are about five assaults every two minutes (Foundation Perseu Abramo 2010), one rape every 11 minutes (FBSP 2017), and 13 women murdered each day (Waiselfisz 2015). Most of the women killed are between 16 and 44 years old (Waiselfisz 2015).

Genealogy of femicide terminology The term ‘femicide’ was first used two centuries ago, by the English writer John Corry (1801). The term was recovered by Diana Russell in 1976 at the International Tribunal on Crimes against Women (Russell 1992: xiv). She considered femicide to be the killing of females by males because they are females. Since the 1990s, the term has been used in Latin America as a theoretical and political category to describe and analyse the killings of women due to Table 10.1  International ranking of female homicides Position

Country

Year of data consideration

Rate of deaths per 100,000 people

 1  2  3  4  5  6  7  8  9 10 19 37 51 75

El Salvador Colombia Guatemala Russia Brazil Mexico Moldavia Suriname Letonia Puerto Rico US Canada Australia UK

2012 2011 2012 2011 2013 2012 2013 2012 2012 2010 2010 2011 2011 2013

8.9 6.3 6.2 5.3 4.8 4.4 3.3 3.2 3.1 2.9 2.2 0.9 0.6 0.1

Source: Waiselfisz 2015. 2

The criminalisation of femicide   183

gender discrimination. It was translated into Spanish by Ríos (2006), a Mexican feminist and anthropologist, who mutated the term to ‘feminicide’ (feminicidio), to avoid confusion with simply a female homicide, stressing the gender perspective in the new category of analysis. The term gained new strength in the Mexican context, after the incidents in Ciudad Juarez, a small town on the Mexican–American border, on the other side of the Texan city El Paso. During the 1990s, an unprecedented number of women were murdered in that city, in a context of physical assaults, collective sexual abuses, torture and disappearances, suggesting that these homicides were a type of hate crime. There were about 400 unexplained and apparently senseless murders of women in Juarez in the 15 years from 1992 (Leal 2008). In Juarez, there were a significant number of men involved in drug trafficking and facilitation of illegal immigration to the United States (US). This created a very sexist environment and ‘macho’ culture. During the 1990s, many industries moved to the town (known as maquiladoras). Since these industries preferred to hire young women, there was an increase of women using public space and achieving new levels of economic independence. This challenged sexist stereotypes, leading to violent confrontations between many men and women. The nature of the killings suggested a disciplinary component – the punishment of women for the violation of gender stereotypes (Romero 2014). Many women’s bodies were discovered in the cotton fields in the countryside, so the killings became known as ‘the cotton field cases’. Many civil servants were negligent or corrupt in not carrying out investigations into the killings (Ríos 2006: 224). The killings were also associated with a persistent failure on the part of public authorities to enforce prevention policies. Part of this failure was related to the little attention given to the victims, who were labelled as prostitutes or somehow involved in the drug trade. In this context, the mothers of the victims created organisations for recovering the bodies of their daughters and seeking punishment for the crimes (Leal 2008). This movement put the killings on the political agenda, contributing to the creation of a Parliamentary Special Commission of Inquiry to investigate the  ‘femicide’ of girls and women in Ciudad Juarez and other Mexican cities. The Commission analysed the deaths of women in other contexts, revealing that there were 6000 killings of girls and women in six years, despite no war or post-­war conflicts. This led to the conclusion that not only were these deaths female homicides, but they were also perpetrated because the victims were women (Segato 2006: 3). The Commission’s findings led parliament to pass two statutes: the General Law for Women’s Access to a Life Free of Violence (2007), and the criminalisation of femicide (2012). The Ciudad Juarez cases were presented in 2002 to the Inter-­American Court of Human Rights, in Gonzalez and others vs Mexico. In 2009, the court convicted

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Mexico of the violation of the right to life and non-­discrimination, on the basis that these crimes ‘were influenced by a culture of discrimination against women’ (Court IACHR 2009). The parliamentary discussions in Mexico led neighbouring countries to also consider the issue of femicide. The first countries to pass femicide laws were Costa Rica and Venezuela, in 2007 (CEPAL 2015). By 2010, four countries had criminalised femicide, and by 2015, 16 countries in Latin America had specific legislation related to the gender-­related killing of women under the name of femicide or feminicide, or as an aggravating circumstance in homicides. These countries are: Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Peru and Venezuela. Despite the mutation of the term in some Latin American countries, both femicide and feminicide are used interchangeably to refer to the gender-­related killing of women (UN Women and OHCHR 2014: §38). The term was recognised at the highest international level in a Resolution of the General Assembly of the United Nations (UN 2014), which recommended national legislation to punish the gender-­related killing of girls and women, as well as mechanisms to prevent and investigate these forms of gendered violence.

The limits of the new concept Diana Russell uses a broad definition of femicide, aiming to include in the generic category all killings of women linked to the general oppressive patriarchal order, both in private and public spheres. She defines the concept as follows (Caputi and Russell 1992: 15): Femicide is on the extreme end of a continuum of antifemale terror that includes a wide variety of verbal and physical abuse, such as rape, torture, sexual slavery (particularly in prostitution), incestuous and extrafamilial child sexual abuse, physical and emotional battery, sexual harassment (on the phone, in the streets, at the office, and in the classroom), genital mutilation (clitoridectomies, excision, infibulations), unnecessary gynecological operations (gratuitous hysterectomies), forced heterosexuality, forced sterilisation, forced motherhood (by criminalising contraception and abortion), psychosurgery, denial of food to women in some cultures, cosmetic surgery, and other mutilations in the name of beautification. Whenever these forms of terrorism result in death, they become femicides. Ríos (2006: 216) argues that femicide is genocide of women that is engendered by social practices that tolerate gendered violence. She also defines femicide as a state crime, since these killings could be prevented through gender equity policies and because the persistent impunity of offenders reinforces the patriarchal values that favour the socio-­cultural environment that allows the commission of

The criminalisation of femicide   185

femicide. In this regard, the new category is intended to name and denounce a ‘war on women’ (Segato 2014). In a similar vein, Fragoso (2005: 43) considers femicide to include ‘the progression of violent acts that range from emotional and psychological abuse, battery, verbal abuse, torture, rape, prostitution, sexual assault, child abuse, female infanticide, genital mutilation, domestic violence, and all policies tolerated by the State that cause the death of women’. Pasinato (2011) draws attention to the gender-­related reasons for the killing of women, such as when a woman dates a man involved in organised crime and suffers violence from an adversarial group, as a way to harm her partner. The Committee of Experts on the Convention of Belém do Pará states that: femicide is the violent death of women based on gender, whether it occurs within the family, a domestic partnership, or any other interpersonal relationship; in the community, by any person, or when it is perpetrated or tolerated by the state or its agents, by action or omission. (CEVI 2008) The inclusion of all killings of women for gender reasons in a single category may be effective as a strategy to denounce the patriarchy; on the other hand, it may create a smokescreen that obfuscates specific types of violence against women (Segato 2006: 9). Due to the broad sociological definition of femicide, many authors have proposed classifications of femicides. Manjoo (2012: §16) argues for a distinction between direct and indirect femicide. The direct femicide category includes killings as a result of IPV, sorcery/witchcraft-­related killings, honour-­related killings, armed conflict-­related killings, dowry-­related killings, gender identity- and sexual orientation-­related killings, and ethnicity- and indigenous identity-­ related killings. The indirect category includes deaths due to poorly conducted or clandestine abortions; maternal mortality; deaths from harmful practices; deaths linked to human trafficking, drug dealing, organised crime and gang-­ related activities; the death of girls or women from simple neglect, through starvation or ill-­treatment; and deliberate acts or omissions by the state. Manjoo argues that this concept could be useful at the international level to hold states responsible for failing to prevent crimes. UN Women and OHCHR (2014: §47) recognise that the Latin American experience has produced several classifications of femicide: intimate femicide, non-­intimate femicide, child femicide, family femicide, femicide because of association or connection (the killing of a woman ‘in the line of fire’ of another woman), systematic sexual femicide, femicide because of prostitution or stigmatised occupations, femicide because of trafficking, femicide because of smuggling of migrants, femicide because of female genital mutilation, transphobic femicide, lesbophobic femicide and racist femicide. It also provides a specific classification of femicides: intimate or family femicide (based on the idea of women as

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possessions); sexual femicide (based on the idea of women as objects to be used and discarded by men), and femicide in a group context related to more rigid stereotypes that define male–female relationships and particular gender roles (UN Women and OHCHR 2014: §134). Segato (2012) proposes the following classification: • Femicide in interpersonal relations (domestic violence). • Femicide linked to the perpetrator’s personality (serial killers). • Femicide without personal relations (femigenocide): female body destruction in war contexts and similar impersonal crimes in other non-­war contexts, such as sex trafficking. Segato (2005, 2012) argues that the killing of women in Ciudad Juarez should be considered a crime against humanity, equivalent to genocide, since it constituted a generic lethal attack against victims who belong to a group with a specific gender characteristic (women). It represents the generic murder of a victim for the sole reason that they are female, where the victim has no prior interpersonal relations with the offender. This generic, impersonal, systematic and large­scale nature of the crime could open access to International Human Rights Courts, with the potential for three positive impacts. First, it would give more visibility to the violence arising from gender inequality. Second, it would cast light, not only on femicide in private spaces and by intimates, but also on the gender reasons behind the killings of women in public places by strangers. And third, it would avoid any statutory time limits on prosecution and punishment (Segato 2012). Segato proposes to use the general term ‘femicide’ for all other cases of killings of women with gender motivations, and suggests the term ‘femigenocide’ to individualise these other contexts of the killing of women where there is no possible individualisation of motivation of the offender or interpersonal relation between the perpetrator and victim – thus representing a genocide of women, as occurred in Ciudad Juarez.

Criticism of the criminalisation of femicide Some voices have been raised against the criminalisation of femicide. Their criticisms can be classified into three themes: questioning the value of including all forms of gendered killings into one single category, strengthening the punitive drift in criminal justice, and the potential backlash against women’s rights. As set out above, there is no consensus on the appropriate reach of the term femicide with some believing it should encompass all killings of women, while others believe it needs to be more limited. Eugenio Zaffaroni, a former Justice of the Argentinian Supreme Court, and a renowned criminal and human rights academic, considers that there are no femicides in Argentina, since there are not, in his view, crimes perpetrated with the characteristic of indifference towards the victim, as in the Ciudad Juarez context (Clarin 2015). He therefore

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argues that this criminalisation would have only a very limited application to transgender people, and not to women. In this regard, the possibility of applying the category of femicide to transgender people is controversial. Some international studies support the application of the term femicide to the killing of transgender women, regarding these killings as an expression of hate and discrimination against feminised bodies (Segato 2012; UN Women and OHCHR 2014: §47; UN Women et al. 2016: 82). Others propose a more restricted interpretation of the law as applying only to those born female (Hireche and Figueiredo 2015). The imprecision and ambiguity of the criminal classification of femicide, as indiscriminate violence against women, may lead to challenges to its assimilation into the juridical field, especially in relation to creating protocols for the different contexts of killings (Segato 2012; Pasinato 2011). Another criticism relates to what is suggested to be the punitive tone of the reforms. Vasconcellos (2015: 10) considers that ‘the use of criminal law as a means to ensure gender equality and prevent violence harms the administration of domestic and family conflicts, because the punitive logic colonises all the mechanisms aimed at preventing violence and guaranteeing rights’. Feminist critical criminology argues that, in a regional context where a culture of human rights is not fully embraced, strengthening the criminal justice system may have adverse consequences for women. After all, it is the same system that increases maternal deaths through the criminalisation of abortion, produces a super population of women in prisons for drug related offences, kills women’s sons and daughters in police confrontations in the ‘war on crime’ and typically revictimises women when they suffer violence (see Andrade 2004). Feminist critique argues that labelling in order to recognise and combat violence against women is different from a label designed simply to increase the punishment for such violence (Diniz, Costa and Gumieri 2015a), and the potential benefits to be gained from the recognition of femicide could be achieved through strategies that are not simply punitive. According to Mendes (2014), however, such criticism disregards the importance of using the criminal law as a tool to enforce the human rights of women, and as an expression of the state’s duty to protect. After all, only 1 per cent of the prison population in Brazil are there for domestic violence (DEPEN 2014: 34). The criminalisation of femicide does not necessarily mean punishing more. Research has found that, even before the introduction of the new femicide law, 90 per cent of these crimes were already punished as aggravated homicide with ‘frivolous or vile motivation’ (Diniz, Costa and Gumieri2015b: 19). According to Ríos (2006: 225), ‘the law we are proposing is not a punitive law, it is a law that sets a political reordering to reach the causes of the violence’. The effort to protect women through the criminal law does not undermine the struggle to humanise the criminal system and introduce preventive policies.

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The conceptualisaton of femicide as part of the political struggle to recognise gendered violence The sociological categorisation of femicide represents an effort to recognise and understand gendered violence behind the killings of women, highlighting women’s position of subordination, marginalisation and risk (UN Women and OHCHR 2014: §40). Segato (2006: 3) argues that the purpose of this categorisation is to denounce the political dimension of all female killings that result from patriarchal control and punitive power. The investigation of femicide as a category that is independent from the gender-­neutral homicide aims to make explicit that women are often killed for reasons associated with their gender. According to Segato (2003, 2005, 2006, 2012, 2014), the criminalisation of femicide presupposes that there is a patriarchal structure that informs gender relations in which women are not equally valued. This structure acts in ways that organises interpersonal relations, based on a binary, unequal and hierarchical matrix. And within this system power and masculinity are synonymous. The patriarchal order assigns a specific place for women – the private sphere of the home; objectifies women as the property of men; and places a set of disciplinary constraints that pressure women to remain in their expected gender space (Segato 2006). The female body is a territory and an object of conquest that is subject to colonisation and violation by men (Segato 2003, 2012). Segato (2003) argues that the most visible evidence of the patriarchy is gender relations in the family: the paternal function incarnates authority, power, honour, prestige and demands for respect. The maternal function is limited to reproductive and care activities, with high expectations of chastity and submission to paternal authority. This Patria Potestas (the power held by the male as the chief of the house, in Ancient Rome) spreads over all members of the family, who recognise and obey male authority. The sons and daughters project into themselves this patriarchal division of roles through the socialisation process, reproducing it in their future lives. This male authority may be accepted peacefully, or enforced by disciplinary measures. This foundational system of unequal power is the basic prototype of hierarchical relations, projected into the social sphere and legitimating other inequalities, based on gender, sexual orientation, age, class, race, religion, region, nationality or colonial status. Within this order, there is a strong expectation of female fidelity and tolerance with male profligacy, recognised as virility. Controlling the sexual life of women is considered a question of male honour. In intimate partner relations, when a woman decides to leave a relationship, it is considered a personal offence to the man, representing not only disobedience, but also a questioning of his role of provider and even of his sexual ability (Machado and Magalhães 1999). This implicit message insults male virility and the patriarchal order requires the man to exercise his disciplinary power to reaffirm his honour (Romero 2014). Gendered violence may progress from humiliation, pain, the deprival of goods, aggression, even killing.

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This patriarchal order is also projected onto the public sphere. When a woman defies the social construction of her female body, challenging moralistic expectations in the public sphere by wearing ‘provocative’ clothes, walking alone or exercising her sexual freedom, she is labelled as a ‘dishonest woman’, and an object of man’s pleasure that is unworthy of respect. She becomes a derelict territory, waiting to be conquered, and any resistance to the conquest is an offence to the conqueror’s virility. In order to avoid his territory being conquered or violated by another man, men need to control women’s behaviour in public. Men’s control over women is an act of dominance over his territory, and a central aspect of male honour in a sexist culture. In this context, jealousy is an expression of power and control. According to Machado and Magalhães (1999: 11), the femicide phenomenon is related to the male identity as warrior, embodying a virility that requires the use of strength and the control over the sexual life of women. Ríos (2006: 224) asserts that femicide expresses this male imperative to control women. A Brazilian study of 2000 young people illustrates this vision: 96 per cent of those interviewed believe that Brazil has a ‘machismo’ culture, 68 per cent of women had been sexually harassed in public, 66 per cent of women had been offended by a partner, and 55 per cent of men reported that they had morally insulted, threatened, assaulted or humiliated a woman in public, forced a woman to have sex with them or stopped a woman from going out in public or wearing particular clothes (Institute Avon and Data Popular 2014). Femicide is not only an exercise of power over the victim; the violence is a communicative act, proving the perpetrator’s virility, allowing him to belong to what Segato (2006: 7) calls the patriarchal brotherhood. In this sexist culture, a man needs to substantiate and reaffirm his masculinity. The reciprocal male loyalty facilitates tolerance and impunity for crimes against women. This concept of the ‘male honour defence’ is deeply entrenched in social praxis and has been traditionally recognised in Latin America as legal tradition and therefore as a lawful excuse for the killing of women, promoting impunity and reinforcing the sexist culture. Femicide is a metalanguage, reinforcing the misogynist order as acceptable and inevitable, promoting all forms of gendered violence. It must therefore receive stronger reprobation, since its effects transcend the individual victim. The heightened visibility of the gender discriminatory drivers behind the killings of women, similar to racism and homophobia, allows for the characterisation of femicide as a hate crime that aims to maintain and reproduce power (Segato 2006: 4; Romero 2014). Femicide is not a new kind of violence, but gendered violence in its most extreme manifestation. It is not an isolated incident that happens occasionally, but rather the fruit of many sociocultural factors underpinned by a history of men’s domination over women, including impunity for violence against women. The sexual violence, torture and humiliation frequently associated with the killings of women indicate that femicide expresses a continuum of control over

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women’s sexual life, a punishment for the breach of the expected moral chastity. The criminalisation of femicide recognises and exposes through law such persistent gender inequality.

Criminalisation of femicide and new policies The criminalisation of femicide aims to use the law to promote public awareness, facilitate preventive policies, produce statistics, promote better treatment of survivors or secondary victims in court, avoid ‘defence of honour’ arguments and promote appropriate accountability for violence against women. It represents a political denouncement of the institutional violence underlying such killings. Naming is a strategy to recognise and give visibility (Diniz et al. 2015a). According to Quiñones (2017), ‘passing the legislation and understanding femicides as hate crimes already opens up a space for discussion and creates awareness’. In the media, the legislation facilitates the adoption of codes of ethics for the coverage of the killings of women, challenging the myths and beliefs that promote violence against women, and helping to deconstruct sexist stereotypes (CEVI 2008; UN Women and OHCHR 2014: §411). When the media begin to use the term ‘femicide’, it builds public awareness around gender inequality and its connection to violence against women. Comprehending femicide as the ultimate act in a chain of acts of violence against women highlights the preventability of such crimes. Femicide as a category of homicide highlights the link between gender inequality and violence against women and that the failure of the state to promote women’s rights is a factor contributing to the killing of women. This understanding reinforces the state’s duty to promote the protection and reparation of the victim, and to implement policies to prevent violence against women. Such policies should address the multi-­causal factors driving gender discrimination, at the structural, institutional, interpersonal and individual levels (Manjoo 2012: §27). An important aspect of the criminalisation of femicide is the enhancement of data collection. According to Quiñones (2017), accounting for these killings in Latin America is still a challenge because most of the data related to violent deaths are not disaggregated by sex. Producing good quality statistics is a key strategy to analyse patterns of violence against women and develop evidence-­ based policies (Manjoo 2012: §105). If femicides are not counted, they will not be accounted for (Alméras and Magaña 2012). Currently, producing data on femicide is an immediate UN priority (Simonovic 2016: §29). The criminalisation of femicide has led many countries to produce better official data. Peru, for example, developed a Femicide Registry, providing national statistics and promoting research that generates evidence for developing public policy (CEPAL 2015). In Brazil, the legal definition of femicide led to its election as a focus of the 2016 National Strategy of Justice and Public Safety – a programme aimed at prioritising the investigation, prosecution and judgment of specific crimes. During the first year after the introduction of the

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new femicide law in Brazil – from 15 March 2015 to 15 March 2016 – there were 3818 cases of femicide, which led to 2686 formal criminal investigations, and, by the end of year 2016, 52.8 per cent of these cases had been prosecuted, 3.35 per cent filed, 3.2 per cent reclassified as a less serious crime, while 40.58 per cent remained under investigation (Brazilian National Council of the Prosecution Office 2016). This programme provides an important mechanism for monitoring the effectiveness of the adopting the concept of femicide in the law, especially in the phases of investigation and prosecution. Finally, holding femicide perpetrators accountable is a key mechanism for overcoming the social normalisation of violence against women and assisting in the prevention of future such crimes. The state’s historic failure to bring perpetrators of these crimes to account amounts to a form of institutional violence, denying women access to justice. Criminalisation ensures recognition of the relevance of the crime, compelling justice professionals to grant due attention to the killings of women. Currently, some of the greatest challenges to emerge from the introduction of the femicide law include the need to increase awareness and improve the skills of criminal justice actors in applying human rights and gender equality perspectives (CEPAL 2015). An important advance in the accountability of perpetrators is the creation of specific protocols and projects for justice practitioners.

Femicide investigation and prosecution protocols The Inter-­American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belem do Para) states in article 7, items ‘b’ and ‘e’, that all countries have the duty to ‘apply due diligence to prevent, investigate and impose penalties for violence against women’ and ‘take all appropriate measures, including legislative measures, to amend or repeal existing laws and regulations or to modify legal or customary practices which sustain the persistence and tolerance of violence against women’. This international law requires a ‘due diligence’ standard in regard to cases of femicide, to prevent, investigate and punish as well as to guarantee just and effective reparation (Court IACHR 2009; UN Women and OHCHR 2014: §51). One important tool for incorporating a gender perspective in femicide cases is the Latin American model protocol for the investigation of gender-­related killings of women (UN Women and OHCHR 2014). Brazil was the first country to adapt the protocol to its legislation (Quiñones 2017; UN Women et al. 2016). This model protocol has the following goal (UN Women and OHCHR 2014: 4): Provide general guidance and lines of actions to improve the practice of public servants working in the justice system, forensic experts, and other specialised personnel during the investigation and prosecution of gender-­ related killings of women in order to hold the responsible parties accountable and provide reparations for the victims.

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The criminalisation of femicide does not guarantee that perpetrators will be better held to account. In order to do this it is necessary to adopt a ‘gender lens’ during the investigation and criminal prosecution. One of the goals of the criminalisation of femicide is to implement new investigative protocols to address the particularities of the crime (Segato 2006: 10, 2012: 3). These protocols must ensure that evidence of the pattern of violent relations, including the perpetrator’s history of power and control over the victim, should be brought to the criminal procedure, in turn to ensure recognition of the gender-­related motivations of the crime. One interesting point of discussion in the Brazilian context concerns whether it is necessary to evidence the sexist discriminatory intent of the perpetrator in order to apply the new femicide legislation. The legislation requires a special intent, since it considers femicide a homicide perpetrated ‘against a woman, for reasons related to the condition of the female sex’ (Brazilian Penal Code, article 121, §2º, item VI). A section of the law (§2º-A) explains the reach of the crime: ‘There are reasons related to the condition of the female sex when the crime is related to: (i) domestic and family violence; (ii) contempt or discrimination towards the condition of being a woman’. Since in Brazil all cases of crimes against the life are judged by a jury, this mens rea analysis could destroy the mens legis of avoiding undue acquittals, opening a space for interpretations that deny any special discriminatory intent on the part of the perpetrator and reopening the door to ‘honour crimes’. The leading case (Appeal Court of Brasilia 2015) considered that all cases of domestic violence should be considered femicide, since gender discrimination does not derive from a subjective intent, but from an objective socio-­cultural context that shapes individual characteristics and legitimates particular behaviours. Even if the perpetrator does not realise he is acting in a sexist way, objectively, if he is reproducing sexist behaviour by killing a woman, he should be judged as having committed femicide. This was an important judicial precedent, since one of the goals of the criminalisation of femicide and the protocol is to encourage professionals of Jury Courts to take specific training courses on gender relations, to be able to apply the legislation. The law does not demand that jurists check whether a case of femicide in the context of domestic violence involved gender motivations; rather, it directly states that these killings do have a gender motivation, thus ensuring that jury practitioners recognise such motivations. There may be cases where the perpetrator has explicit misogynist motivations, such as in the case of serial killers of women. But gender-­based violence should be recognised in most cases in the context of the femicide, as in the cases of domestic violence, sexual commerce, trafficking or smuggling of women and, in general, in the treatment of the victim as a possession or an object. The criminalisation of femicide aims to avoid the use of anachronistic and morally unacceptable juridical interpretations of ‘passion crime’ or ‘defence of honour’ arguments, which often lead to acquittal or a reduction in the

The criminalisation of femicide   193

perpetrator’s responsibility (CEVI 2008; Brazilian National Parliamentary Commission of Enquiry on Violence against Women 2013: 1004). As set out above, when a man kills his partner when she decides to end the relationship, or when she ‘disrespects’ his authority, the killing is not an expression of his love, but of power and control. The devaluation of women’s lives opens innumerable doors for the minimisation of violence against women and leads to impunity. According to Ríos (2006: 223), throughout all the criminal procedures in the Juarez cases a deep misogynist perspective prevailed. The lack of proper training in gender-­related issues may lead to needless delays and to important evidence being overlooked, which will be detrimental to the prosecution. The gender perspective is an analytic tool for the criminal investigation that enables the identification of the gender-­related motives of the crime (UN Women and OHCHR 2014: §103). Relevant evidence, in this context, is the history of gender-­related violence in the relationship, such as physical, sexual, psychological and economic violence, which exposes the relation of power and control between the perpetrator and victim, and the obstacles to breaking the cycle of violence. In many cases of femicide, the goal of the perpetrator is not only to kill, but also to destroy the femininity of the body, with sexual aggression, disfiguration and attacks on erogenous areas, and to inflict pain and suffering. This sort of violence indicates that the crime is motivated by gender discrimination. This new gender perspective in the criminal justice system opens new lines of investigation for forensic experts, in relation to the scene of the crime and the destruction of objects in the house; and in the autopsy, in terms of identifying injuries on the body caused by previous violence; as well as in connection to the circumstances of the crime, such as evidence regarding manipulation, stalking or electronic surveillance. It also compels investigators to consider the opinion of experts in the fields of psychology, social work and anthropology, to highlight the socio-­cultural aspects of the history of violence and its risk factors (UN Women and OHCHR 2014: §198). This new investigative perspective is detailed in the guidelines outlined in the protocol (UN Women et al. 2016: 83). Especially in cases of attempted femicide, when there is a survivor, the new legislation requires jury professionals to apply domestic violence law in order to protect victims. This includes implementing measures to keep the perpetrator under arrest during the criminal justice process or, if he is to be released, granting intervention orders to protect the victim. It also involves inter-­institutional coordination between courts and specialised services to support domestic violence victims. The law also encourages criminal justice actors to overcome prejudices and stereotypes in their treatment of survivors and their family members, and to treat them with respect and dignity, thus increasing the likelihood that victims will receive justice and reparation (UN Women and OHCHR 2014: §358; Manjoo 2012: §116). There are also new security measures that may be triggered, such as police monitoring patrols, which periodically visit the victim and perpetrator to check

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for breaches of intervention orders, or the emergency help devices that provide victims with direct contact with the police in case of stalking or the risk of new attacks (Spaniol and Grossi 2014). Another element of this push to prevent re-­victimisation is the so-­called ‘right to know the truth’ and ‘right to the preservation of the victim’s memory’. Victims and their relatives have the right to identify the perpetrator, clarify their motivations and, in cases of killing, recover the body of the victim and have it returned to the family. These rights encompass the need to be provided with relevant information regarding the progress of the case, as well as to avoid unnecessary exposition of the victim’s privacy (UN Women and OHCHR 2014: §364). The judicial system must protect the victim’s dignity, with guarantees of a ‘respectful procedure’ that prevents the reproduction of wrongful gender stereotypes. In this regard, arguments based on the ‘defence of honour’ are intrinsically unethical and must be proscribed. This prohibits any moral judgment of the victim, which often manifests in blame for having provoked the crime due to her dress, sexual conduct or relationship with the perpetrator (UN Women and OHCHR 2014: §360). Special attention should be paid to not unnecessarily undermining the victim’s privacy in ways that discredit her character, for example, by exhibiting intimate photos or judging her morality as a justification for the violence committed against her (UN Women et al. 2016: 66). Legal practitioners should also avoid determining a testimony’s credibility based on preconceived notions about how the victim should have behaved before, during or after the violation. Instead, the investigation should consider the victim’s special vulnerability in light of gender discrimination. This perspective creates a new role for the public prosecutor’s office as guarantor of the rights of the victims (UN Women and OHCHR 2014: §333). Finally, the protocol stresses the duty to provide just and effective reparation. This new approach recognises the right to effective participation in the criminal justice process of the survivor and their family members, or any person who lived with the victims, as secondary victims. Among the reports of domestic violence made to the Brazilian National Hotline, 77 per cent of the victims had children, 57 per cent of these children were exposed to the violence and 22 per cent of the children directly suffered acts of violence along with their mother (Brazilian National Secretary of Policies for Women 2016). In the sentence handed down in the ‘Cotton field case’, the Court IACHR (2009: §450) asserted that the concept of ‘integral reparation’, in a context of structural discrimination against women, ‘must be designed to change this situation, so that their effect is not only of restitution, but also of rectification’. This right to access to justice requires that all victims of domestic violence be assisted by a free lawyer, as stated in the Brazilian Maria da Penha Law.

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Conclusion Femicide is not tolerable in a democratic society, because it violates the most basic guarantee – the right to life. Its criminalisation in many countries in Latin America represents a political denunciation of a serious problem: women are being killed due to social relations that support gendered violence. The creation of the category of femicide allows for the politicisation of gendered violence. It also helps us understand the specific motivations of perpetrators and their modus operandi. It gives rise to a critical analysis of the functioning of the judicial system in killing of women cases, and promotes public awareness and informs the development of prevention policies. The killing of women may have specific intersectionalities with political, economic, social and cultural factors. The concept of femicide has the potential to be applied in other contexts, such as in relation to female infanticide in South Asia, ‘crimes of honour’ in the Middle East, the killings of women due to accusations of sorcery or witchcraft in Africa and the Pacific Islands, ‘crimes of passion’ in traditional European countries, as well as killings in the context of armed conflict (Manjoo 2012: §22). Law is not only a mirror of society; it is also a means of transformation. Recognition of the human rights of women prescribes a new framework for the interpretation of old laws, and requires the introduction of new laws that send a clear message that gendered violence will not be tolerated. Naming the phenomenon makes it possible for the gendered killing of women to be acknowledged, understood and categorised (Diniz et al. 2015a). This new category, developed in the ‘Global South’ (Carrington, Hogg and Sozzo 2016), has a potent pedagogical and transformative role.

Notes 1 The author acknowledges Professor Jude McCulloch, Professor JaneMaree Maher, Dr Kate Fitz-­Gibbon and Dr Jasmine McGowan, from Monash University, and Professor Lourdes Bandeira, from University of Brasilia, for the discussions and contributions to this paper. 2 This study considered the data from the World Health Organization regarding the deaths of women in 83 countries.

References Alméras, D. and Calderón Magaña, C. (2012) ‘Si no se cuenta no cuenta: información sobre la violencia contra las mujeres’, Cuaderno de la CEPAL, 99. Andrade, V. R. P. (2004) ‘A soberania patriarcal: o sistema de justiça criminal no tratamento da violência sexual contra a mulher’, IBCCRIM Journal, 48: 260–290. Appeal Court of Brasilia (2015) TJDFT RSE 2015.03.1.006972–7, leading opinion of Judge George Lopes Leite.

196   Thiago Pierobom de Ávila Brazilian National Council of the Prosecution Office (2016) Relatório Preliminar da Meta 2016 da ENASP, Brasilia: CNMP. Brazilian National Parliamentary Commission of Enquiry on Violence against Women (2013) Final report. Available from: www2.senado.leg.br/bdsf/item/id/496481 (accessed 14 April 2018). Brazilian National Secretary of Policies for Women (2016) Balanço 10 anos: Ligue 180. Available from: //www.spm.gov.br/central-­de-conteudos/publicacoes/publicacoes/2015/ balanco180-10meses-1.pdf (accessed 14 April 2018). Caputi, J. and Russell, D. E. H. (1992) ‘Femicide: sexist terrorism against women’, in J.  Radford and D.  E.  H. Russell (eds), Femicide: The Politics of Women Killing (pp. 13–21). New York: Twayne Publisher. Carrington, K., Hogg, R. and Sozzo, M. (2016) ‘Southern criminology’, British Journal of Criminology, 56: 1–20. CEPAL (2015) ‘Femicide or feminicide as a specific type of crime in national legislations in Latin America: an on-­going process’, Notes for Equality, n.  17, Gender Equality Observatory for Latin America and the Caribbean. Available from: //oig.cepal.org/ sites/default/files/noteforequality_17_0.pdf (accessed 14 April 2018). CEVI (2008) Declaration on Femicide. Committee of experts of the mechanism to follow up on implementation of the Convention of Belém do Pará. Document MESECVI/ CEVI/DEC. 1/08. Available from: www.oas.org/en/mesecvi/docs/CEVI4-Declaration­EN.doc (accessed 14 April 2018). Clarin (2015) Por qué Zaffaroni cree que no existe el femicidio en Argentina. Available from: www.clarin.com/sociedad/Zaffaroni-­cree-existe-­femicidio-Argentina_0_ryQtPdYvmg. html (accessed 14 April 2018). Corry, J. (1801) A Satirical Review of London at the Commencement of the Nineteenth Century. Edinburgh: T. Hurst, Paternoster-­Row; Ogilvy and Son, Holborn; R. Ogle, Turnstile; and Ogle and Aikman. Court IACHR (2009) Gonzalez and others vs. Mexico. Series C, n. 205. DEPEN (2014) Infopen. Available from: www.justica.gov.br/seus-­direitos/politica-­penal/ documentos/infopen_dez14.pdf (accessed 14 April 2018). Diniz, D., Costa B. S. and Gumieri, S. (2015a) ‘Nomear feminicídio: conhecer, simbolisar e punir’, Revista Brasileira de Ciências Criminais, 114: 225–239. Diniz, D. (Coord.) (2015b) Radiografia dos homicídios por violência doméstica contra a mulher no Distrito Federal. Available from: www.mpdft.mp.br/portal/pdf/nucleos/nucleo _genero/publicacoes/Pesquisa_ANIS_Radiografia_homicidios_violencia_domestica. pdf (accessed 14 April 2018). FBSP – Fórum Brasileiro de Segurança Pública (2017) Anuário Brasileiro de Segurança Pública 2017. Available from: www.forumseguranca.org.br/wp-­content/uploads/2017/ 12/ANUARIO_11_2017.pdf (accessed 14 April 2018). Foundation Perseu Abramo (2010) Domestic Violence. Available from: //compromissoe atitude.org.br/wp-­content/uploads/2012/08/FPA-­modulo-violencia-­domestica-pesq-­2010. pdf (accessed 14 April 2018). Fragoso, J. M. (2005) ‘Feminicidio sexual serial en Ciudad Juárez: 1993–2001’, Derechos Humanos 73: 41–56. Hireche, G. F. E. and Figueiredo, R. S. (2015) ‘Feminicídio é medida simbólica com várias inconstitucionalidades’, Consultor Jurídico. Available from: www.conjur.com. br/2015-mar-­23/feminicidio-­medida-simbolica-­varias-inconstitucionalidades (accessed 14 April 2018).

The criminalisation of femicide   197 Institute Avon and Data Popular (2014) Violência contra a mulher: o jovem está ligado? Available from: agenciapatriciagalvao.org.br/wp-­content/uploads/2014/12/pesquisa AVON-­violencia-jovens_versao02-12-2014.pdf (accessed 14 April 2018). Leal, L. (2008) ‘Combating impunity and femicide in Ciudad Juarez’, NACLA Report on the Americas, 41(3): 31–40. Machado, L. Z. and Magalhães, M. T. B. (1999) ‘Violência conjugal: Os espelhos e as marcas’, in M. Suárez and L. Bandeira (eds), Violência, Gênero e Crime no Distrito Federal (pp. 173–237), Brasilia: Paralelo 15, Ed. UnB. Manjoo, R. (2012) Report of the Special Rapporteur on Violence against Women, its Causes and Consequences. UN Doc. A/HRC/20/16. Available from: www.ohchr.org/Documents/ Issues/Women/A.HRC.20.16_En.pdf (accessed 14 April 2018). Mendes, S. R. (2014) Criminologia Feminista: Novos Paradigmas. São Paulo: Saraiva. Pasinato, W. (2011) ‘ “Femicídios” e as mortes de mulheres no Brasil’, Cadernos Pagu, 37: 219–246. Quiñones, A. (2017) Take Five: Fighting Femicide in Latin America. Available from: www.unwomen.org/en/news/stories/2017/2/take-­five-adriana-­quinones-femicide-­inlatin-­america (accessed 14 April 2018). Ríos, M. L. (2006) ‘Del femicidio al feminicidio’, Desde el Jardin de Freud 6: 216–225. Romero, T. I. (2014) ‘Sociología y política del feminicídio: algunas claves interpretativas a partir de caso mexicano’, Revista Sociedade e Estado, 29(2): 373–400. Russell, D. E. H. (1992) ‘Preface’, in J. Radford and D. E. H. Russell (eds) Femicide: The Politics of Women Killing (pp. xi–xv). New York: Twayne Publisher. Segato, R. L. (2003) Las estructuras elementales de la violencia: ensayos sobre género entre la antropología, el psicoanálisis y los derechos humanos. Bernal, Argentina: Universidad Nacional de Quilmes. Segato, R. L. (2005) Território, soberania e crimes de segundo Estado: a escritura nos corpos das mulheres de Ciudad Juarez. Revista de Estudos Feministas, 13(2): 265–285. Segato, R. L. (2006) Que és Feminicidio: notas para un debate emergente. Série Antropológica do Departamento de Antropologia da Universidade de Brasília, 401. Segato, R. L. (2012) ‘Femigenocidio y feminicidio: una propuesta de tipificación’, Revista Herramienta 49. Available from: //repositorio.ciem.ucr.ac.cr/handle/123456789/151 (accessed 14 April 2018). Segato, R. L. (2014) ‘Las nuevas formas de la guerra y el cuerpo de las mujeres’, Revista Sociedade e Estado, 29(2): 341–371. Simonovic, D. (2016) Report of the Special Rapporteur on Violence against Women, its Causes and Consequences. UN doc. A/71/398. Available from: www.ohchr.org/_ layouts/15/WopiFrame.aspx?sourcedoc=/Documents/Issues/Women/A.71.398.docx& action=default&DefaultItemOpen=1 (accessed 14 April 2018). Small Arms Survey (2016) ‘A gendered analysis of violent deaths’, Small Arms Survey Research Note, 63. Available from: www.smallarmssurvey.org/fileadmin/docs/ H-­Research_Notes/SAS-­Research-Note-­63.pdf (accessed 14 April 2018). Spaniol, M. I. and Grossi, P. K. (2014) ‘Implementation analysis of the Maria da Penha patrols in peace territories in Porto Alegre: advances and challenges’, Textos & Contextos, 13(2): 398–413. UN (2014) Taking Action against Gender-­related Killing of Women and Girls. A/RES/ 68/191. Available from: www.unodc.org/documents/commissions/CCPCJ/Crime_­ Resolutions/2010-2019/2013/General_Assembly/A-­RES-68-191.pdf (accessed 14 April 2018).

198   Thiago Pierobom de Ávila UN Women and OHCHR (2014) Latin American Model Protocol for the Investigation of Gender-­related Killings of Women. Available from: www.un.org/en/women/endviolence/ pdf/LatinAmericanProtocolForInvestigationOfFemicide.pdf (accessed 14 April 2018). UN Women et al. (2016) Brazilian National Guidelines on Femicide: Investigating, Prosecuting and Judging Violent Deaths of Women with a Gender Perspective. Available from: www.­ onumulheres.org.br/wp-­content/uploads/2016/04/diretrizes_feminicidio.pdf (accessed 14 April 2018). UNODC (2014) Global Study on Homicide 2013. Available from: www.unodc.org/­ documents/gsh/pdfs/GLOBAL_HOMICIDE_Report_ExSum.pdf (accessed 14 April 2018). Vasconcellos, F. B. (2015) Punir, Proteger, Prevenir? A Lei Maria da Penha e as limitações dos conflitos conjugais violentos através da utilização do Direito Penal. Available from: //repositorio.pucrs.br/dspace/handle/10923/7487 (accessed 14 April 2018). Waiselfisz, J. J. (2015) Mapa da Violência 2015: Homicídios de Mulheres no Brasil. Brasilia: Flacso. Available from: www.mapadaviolencia.org.br/pdf2015/MapaViolencia_2015_ mulheres.pdf (accessed 14 April 2018).

Chapter 11

Considering victim safety when sentencing intimate partner violence offenders Julia Tolmie

This paper raises one of the many problems that the criminal justice system presents in the intimate partner violence (IPV) context – the difficulties in accommodating victim safety when sentencing for criminal offending. These problems stem from the fact that the criminal justice system was never designed to respond to IPV. It constructs violent crime as a decision to use non-­ consensual physical force on a particular occasion. The system is therefore focused on proving that an incident of physical violence took place and responding with punishment that matches the wrong that occurred. Because it atomises patterns of harm into incidents, offenders whose behaviour is responded to on more than one occasion are characterised as ‘recidivists’ (Sentencing Advisory Council 2016: 1). IPV, on the other hand, is not best analysed as a series of independent incidents. Instead, it is a pattern of harm with an overall architecture larger than the sum total of any acts of physical abuse that occur (Family Violence Death Review Committee [FVDRC] 2014: 78; Sentencing Advisory Council 2016: 25). This pattern of harm is likely to continue if not disrupted and has an effect on the victim that is cumulative and compounding over time (FVDRC 2014: 79). Evan Stark suggests that IPV should be understood as a liberty crime rather than an assault crime (2007: 15). It is a suite of coercive and controlling tactics tailored for the individual victim and directed at removing her autonomy and closing down her acts of resistance (Stark 2007: 13, 130–131). The mismatch between IPV and the paradigm that informs the criminal justice system means that sentencing responses are not well designed for IPV. By way of example, imagine a family violence perpetrator who has three successive partners over several decades. In each relationship, he is convicted of several minor assaults that do not cause physical harm. Eventually, the victim terminates the relationship and takes out a protection order. The affidavits that accompany the protection order applications suggest multiple risk indicators for IPV lethality. After separation, he breaches the protection order – by phone calls, threats and stalking – and is charged and convicted of several breaches. In the first two relationships, he is convicted of breaches of a protection order and possession of an offensive weapon after the police intercept him travelling to

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the victim’s house with a weapon and a suicide plan in place. Unfortunately, the police are not able to intercept him in time in respect of his third partner and he kills her. The criminal justice response over the trajectory of his violent history is to keep reacting to each incident – assigning the punishment that is deemed proportionate to that particular incident taken out of the context of the broader pattern of harm in which it occurs. It is likely that his offences are seen as ‘low level’ because they do not cause physical harm to the victim. Historically, it would be likely, given the principles that govern sentencing, that his offences would still be attracting community sentences, even at the end of his trajectory of offending (but prior to the homicide).1 That family violence is a pattern of harm has implications for how such conduct should be understood, but also for what considerations should inform the criminal justice response. First, the gravity of the offence in issue cannot be realistically assessed without an understanding of the overall pattern of harm of which it is a part. For example, an assault is not ‘impulsive’ or ‘unplanned’ when it is part of a pattern of coercive control.2 Second, the fact that IPV is a pattern of harm means that at sentencing there are likely to be ongoing safety issues for the victim, other hidden victims (such as the children of the victim) and potential victims (future partners or children) (FVDRC 2014: 76–77). These two issues are related because past patterns of harm are significant in understanding what kind of behaviour the offender is capable of in order to assess the protective measures that should be put in place for the victim. In the hypothetical above, it is relevant in responding to any ‘minor’ breach of a protection order to know that separation from two prior partners resulted in what look like failed homicide attempts. A period of imprisonment might be given in response to offences that take place during the very high-­risk time of separation because of the perpetrator’s history of escalation at separation (Sentencing Advisory Council 2016: xvi). This would give the victim a window of physical safety during which she could attempt to disengage her life from his. In Part I of this paper I point out that victim safety is not an express or mandatory sentencing consideration in cases involving IPV in New Zealand. In fact, I suggest that the manner in which the principles of sentencing and the decision-­making structure for sentencing have been framed make it difficult to consider victim safety in sentencing. I use the position in New Zealand as illustrative because it represents a traditional approach to this issue.3 In Part  II, I suggest that, even if victim safety were a mandatory sentencing consideration, the process of factual proof at sentencing, combined with the nature of IPV, means that in most cases sentencing judges are not equipped to make informed safety decisions. The irony is that the same barriers do not exist when decisions are made about bail4 – despite the fact that bail decisions are made at a time when the offender has not yet been proven to the criminal standard of proof to have predated against the victim.

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I have two motivations in engaging in this exercise. The first is the suggestion by the New Zealand Family Violence Death Review Committee (FVDRC) that there is a need for those agencies charged with responding to family violence to assume some responsibility for victim safety (FVDRC 2016: 32, 45–47). Currently, the philosophy that underpins the approach generally adopted is the notion of victim empowerment. This places responsibility for victim safety on the victim and focuses on assisting her to keep herself and her children safe. What is not acknowledged in this approach is that IPV is a form of social entrapment – meaning that the perpetrator’s actions operate to close down victim resistance – along with the lack of useful responses from agencies when victims engage in help-­seeking and the larger structural inequities that operate to exacerbate these difficulties for many victims (FVDRC 2016: 37–49). Requiring the criminal justice system at the point of sentencing to take some responsibility for victim safety is, of course, different from advocating this system as the best way to achieve safety. A second related motivation is that we currently do not have a system designed to respond to family violence. When victims seek help they must navigate a range of systems (such as health, family law and criminal justice) that are designed to address other phenomena. Reforming this complex and fragmented ‘default’ system so that it is reconfigured as a ‘family violence safety system’ is a difficult task (FVDRC 2016: 23–33, 61–90). Complexity theory suggests that the appropriate approach is to start to nudge the system in directions in which we would like to see it develop and then monitor and respond to what happens (FVDRC 2016: 62–63). Requiring and better equipping judges to accommodate victim safety at sentencing may be one such nudge. Establishing victim safety as a mandatory sentencing consideration in cases involving IPV will have implications for other parts of the system. For example, under section 24A of the Sentencing Act 2002 restorative justice is now built into all District Court sentencing processes in New Zealand where there has been a guilty plea. However, there are serious concerns about how restorative justice may operate in the IPV context (Stubbs 2014). Requiring judges to prioritise victim safety when sentencing will give the judiciary responsibility for assuming an oversight role in relation to restorative justice processes in IPV cases. Mandating victim safety as a sentencing consideration could also provide an impetus for the development of sentencing options that permit the ongoing management of risk in cases involving IPV. This may also have implications for how stopping violence programmes are delivered as part of the sentencing process. New Zealand stopping violence programmes are not currently integrated into an overall multi-­agency safety response and are still reliant to a large degree in their assessments of risk and change on perpetrator self-­reporting (FVDRC 2013: 57–65; Ministry of Justice 2014a). And victim safety is not built into the requirements for the delivery of these programmes. In other juris­ dictions, like the United Kingdom, perpetrator programmes that are accredited

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are linked into a multi-­agency response and have parallel advocacy services for victims (Blacklock and Debbonaire 2012). Sentences designed with victim safety in mind should not always be longer sentences so much as sentences that are crafted differently. For example, when sentencing an offender to a curfew at a separate address, instead of tailoring that around the offender’s sporting activities a focus on victim safety might prioritise the need to provide the victim and her young children with a zone of safety so that she can pick the children up from school, feed them and get them to bed, knowing that the offender is not at large. In other words, rather than a curfew starting from 8 o’clock at night to allow him to get to the gym after work, the curfew might commence at a time that is reasonable for her to take the children home each afternoon.5 This point ties into the need to develop better sentencing options for family violence offenders. It is important that victim safety is not automatically conflated with increased incarceration, particularly in light of the over-­imprisonment of Indigenous men. Victim safety might also dictate the avoidance of certain types of sentences. For example, fines do not fulfil the purpose of community protection and may compound the harm experienced by the victim if she is in a relationship of financial interdependence with the offender by withdrawing resources from the family as a whole (Royal Commission into Family Violence [RCFV] 2016: 208). Victim safety needs are, of course, complex and holistic. For example, victims who occupy ‘dangerous social positions’ (FVDRC 2014: 87) may face danger from a number of human sources, including other men within their social circle. Other family members whom the perpetrator has contact with, such as the victims’ parents and children, may also face danger. Victims may also be dealing with dangers from non-­human sources, such as potential homelessness and difficulty in meeting basic survival needs. Safety issues for women who are not in a position to leave their abusive partner will present unique challenges (Marcus 2012). It is also important to note that involving victims in an assessment of risk and safety is something that has to be approached with skill, so that the victim’s views can be safely ascertained and respected without giving them responsibility for decision-­making. The nature of IPV is coercive and victim statements may or may not reflect their true or long-­term position.6 Considering the safety of IPV victims at sentencing raises many challenges not addressed here. For example, there are no risk assessment mechanisms that precisely predict future harm. While there are validated assessment instruments that provide over-­inclusive predictions for intimate partner re-­assault or lethality, there are challenges involved in using these in the sentencing context that have been well traversed in the literature (Roehl and Guertin 2000; Chanenson and Hyatt 2016).7

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Part 1: sentencing purposes, principles and decision-­m aking structures In this section, it is pointed out that victim safety is not an express or mandatory sentencing consideration in cases involving IPV offenders in the New Zealand Sentencing Act 2002. The rationales for punishment, the statutory principles, and the common law limitations on these principles are described using a victim safety lens. The rationales for punishment Some rationales for punishment are retrospective, while others have a preventative focus. Retribution, denunciation and reparation are retrospective. Retribution in the modern context manifests in the notion of ‘just deserts’ (Hall 2014). This sentencing rationale focuses on assessing the gravity of the offender’s past wrong and matching the sentence to that gravity. The idea is that an offender should be given the punishment they inherently deserve for the nature of the wrong they committed.8 Because there is no science in this process, such an approach places a high value on what similar acts of offending have attracted by way of penalties in other cases and therefore consistency in sentencing (Hall 2014: 102). Denunciation is built into this approach – the sentence should reflect society’s abhorrence of the offence. Reparation, also backward looking, is  about providing compensation for the harm sustained as a result of the offending. The remaining rationales (deterrence, rehabilitation and incapacitation) contemplate the use of punishment to prevent future harms. Deterrence envisions the punishment acting as dissuasion for future offending by reminding people of the possibility and pain of punishment for the purposes of influencing their behavioural choices – both the specific offender and others who might be contemplating similar actions (Bagaric 2000). Rehabilitation sees the motivation for punishment as reformation of the offender – investing in changing their attitudes, coping skills and lifestyle in an attempt to resocialise them so that they no longer wish to offend (Hall 2014: 135). Incapacitation is directed at using the coercive powers of the criminal justice system to directly pre-­empt future offending by incarceration or ‘close supervision in the community through enforced compliance with conditions of supervision or parole’ (Hall 2014: 126). All of the forward-­looking rationales for punishment have implications for victim safety. However, incapacity is most concerned with the specific victim’s immediate safety needs and can be achieved by incarceration, community detention and supervisory sentences. Deterrence and rehabilitation, on the other hand, are directed at changing the perpetrator’s choices and are not as well served in respect of IPV by the current sentencing options (RCFV 2016: 208–209). For example, the deterrence literature suggests that it is not the

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punishment per se but the chance of being caught that operates as a deterrent (Bagaric 2000), and yet IPV offending is not likely to result in charges or a conviction. What is needed are sentences that place many eyes on the offender with certain and escalating responses to continued abuse (along with ongoing support for the victim). The sentencing legislation The rationales for punishment find expression in the purposes and principles set out in the Sentencing Act 2002 (NZ). However, when victim interests are mentioned in the legislation they are characterised in terms that are consistent with responding to harm that has already taken place.9 For example, the purposes of the Sentencing Act 2002 are set out in section 3, and only one refers to victims: ‘to provide for the interests of victims of crime’ (subs (d)). Section 7 of the Sentencing Act 2002 describes the ‘purposes’ for which a court may sentence an offender. Consistent with section 3, the court may ‘provide for the interests of the victim of the offence’ (subs (c)). While the interests of the victim could include their ongoing safety, these are equally consistent with the aims of reparation or denunciation. Most of the other sentencing purposes specific to victims contained in section 7 involve reacting to past harm. For example, holding the offender accountable for harm done to the victim (subs (a)) is not a consideration of the victim’s safety needs going forward.10 By way of contrast, community protection is an overt sentencing consideration. Section 7(g) of the Sentencing Act 2002 provides that the court may sentence to ‘protect the community from the offender’. However, while community protection should encompass victim safety, this is not made explicit.11 And, in fact, community protection is interpreted to encompass a range of sentencing rationales that do not include the specific victim’s future safety needs.12 Geoff Hall points out that community protection is conceived in the most general terms: it ‘may be achieved by the adoption of any one or any combination of the various purposes of punishment’ (Hall 2014: 100–101). In other words, the protection of the community is understood as consistent with the retrospective rationales for punishment and does not demand a preventative focus. Furthermore, even if community protection did require a consideration of the particular victim’s safety needs, it is only one of a range of other (potentially countervailing) considerations set out in the Act. Section 7(2) makes it clear that none of the sentencing purposes has priority over any of the others. This means that victim safety, even if it can be read into the sentencing purposes via the ‘interests’ of victims or ‘community’ protection, is, at best, an optional consideration. As a result, while individual judges who are knowledgeable about IPV can, and do, use aspects of the legislation to give expression to victim safety, this will not automatically occur in all cases. The Family and Whanau Violence Legislation Bill (NZ) proposes to amend section 9 of the Sentencing Act 2002 to include as an aggravating factor that the

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offence was ‘a family violence offence committed while the offender was subject to a protection order against a person who was a protected person under that order’. However, this proposal is insufficient to address the safety issues raised here. First, and most obviously, not all victims of IPV will obtain a protection order, yet victim safety should be a priority whether or not a protection order has been obtained. Otherwise, protection orders become simply another hurdle that victims have to surmount in discharging the onus that is placed on them to achieve safety for themselves and their children. Second, as noted above, victim safety does not necessarily require longer sentences. Rather, it might require sentences that are crafted differently. The common law The common law further limits how the principles set out in the legislation are to be applied. Specifically, the value that is given predominance in the New Zealand case law is ‘proportionality’ – the need to make the punishment fit the gravity of the crime, as measured against similar acts of offending in other cases. First, the case law expressly states that proportionality must limit any considerations of community safety when setting the appropriate sentence. The leading case is R v. Ward,13 in which the court commented that: the protection of the public against those likely to offend repeatedly can all too easily be seen as an additional punishment for past offences. For these reasons the law has sought to preserve the preventative aspect being given too much importance. The controlling principle which it has developed to prevent it taking charge in a dominant way is that a reasonable relationship to the penalty justified by the gravity of the offending must be maintained. What the strong emphasis on proportionality means is that, if the court considers the incident of offending to be ‘low level’, then the sentence is limited to what might be considered appropriate to that incident in light of what sentence has previously been given to similar decontextualised incidents.14 This is so regardless of how serious the victim’s safety concerns might be – for example, that the offender has a past pattern of escalating harm at separation or that there are multiple risk indicators for IPV lethality. This principle is reinforced by the rule that the court must impose the least restrictive outcome that is appropriate in the circumstances (section 8(g), Sentencing Act 2002 (NZ)). Second, the decision-­making structure devised by judges for sentencing prioritises proportionality and renders victim safety difficult to accommodate in sentencing. The courts first set a ‘starting point sentence’.15 This incorporates aggravating or mitigating factors particular to the act of offending, conceptualised as the decontextualised incident that comprises the offence. The focus is on, for example, whether a weapon was used, how it was wielded, which part of the victim’s body was struck, whether injury was caused and whether the act

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was ‘premeditated’ (Hall 2014: 153). The courts compare the offender’s act with similar acts committed by other offenders in the case law and adopt a similar starting point to those considered comparable in culpability. This first step gives expression to the value of proportionality and the rationale of retribution (Hall 2014: 142). The starting point sentence is then adjusted up or down to accommodate aggravating or mitigating factors personal to the offender.16 Whether or not there has been a guilty plea or assistance provided to the authorities may be a third step adjustment.17 Considering victim safety requires a departure from this decision-­making structure. This is because it is neither directly relevant to the act of offending, nor is it a matter that is personal to the offender or implicated in a guilty plea. When the perpetrator’s offending is a pattern of harm over a period of time prosecuted together as a series of offences, the ‘correct approach’ is to identify the ‘lead offence’. The court then determines a starting point sentence that reflects the gravity of that ‘lead offending’, before making ‘uplifts’ to reflect the other offences, and then adjusting on a totality basis (if necessary) to ensure that the starting point reflects the gravity of the offending overall. Thus, in Cash v. Police,18 the defendant had been issued with a police safety order in respect of his pregnant partner and later that day dragged her by the arm down the street, only desisting upon police intervention. Two months later, while on bail in respect of this assault, he was issued with a protection order and several days later sent more than 50 violent text messages to the victim, threatening to drive a car into her house, forcibly abort her baby and send gang members after her, in addition to phoning her more than 50 times over a six-­hour period. A few weeks later he again phoned her, stating that he would be visiting her address with other men and would kidnap her and force an abortion by kicking her in the stomach. He then showed up in person and, when he was prevented from entering the property by other people, threw a rock through a window. Rather than seeing this as a pattern of retaliation and intimidation in response to the victim’s attempts to protect herself that did not escalate to more serious violence only because others were on hand to protect her, the court characterised the lead offence – the assault – as ‘relatively minor; it involved not more than Mr Cash taking hold of the victim’s arm and propelling her in a direction in which she did not wish to go’.19 The threats, while ‘frightening’, ‘were made in the context of a volatile relationship in which the victim had not always behaved well and at a time when Mr Cash was under some emotional pressure’.20 The court held that four months’ home detention and 80 hours community work was ‘manifestly excessive’ for one assault, one wilful damage and two convictions for behaving threateningly, and the sentence was reduced on appeal to 42 days’ home detention. As this example demonstrates, taking an atomised approach to sentencing for the purposes of applying the proportionality principle loses the meaning of patterns of harm and their implications for  victim safety, even when offences are prosecuted together. Furthermore, this  particular judgement is unlikely to enhance victim safety, given that it

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minimises and excuses the offender’s abuse and apportions blame to the victim. It is thus likely to be read by a perpetrator who is seeking to avoid taking responsibility as a partial vindication.

Part II: information on patterns of harm The second issue raised here as relevant to victim safety is the information that sentencing judges have available to them about past patterns of harm in IPV cases. This information is necessary to assess risk and respond to a victim’s safety concerns when sentencing those who have used violence against them (Sentencing Advisory Council 2015). Also of relevance in assessing what sentencing arrangements might best support victim safety, but which is not addressed here, is information about the victim’s circumstances, such as her relationship status, whether she has dependent children, her financial position, her living arrangements, and her level of family and community support, including protective factors in her life. Section 9(1)(j) of the Sentencing Act 2002 (NZ) sets out as an aggravating factor in sentencing ‘the number, seriousness, date, relevance, and nature of any previous convictions of the offender’.21 This suggests that only abuse that results in a criminal conviction should be considered for the purposes of increasing (as  opposed to modifying) a sentence. The court is likely to interpret section 9(1)(j) to include charges that have been proven but have resulted in a sentence of ‘discharge without conviction’.22 In fact, even though sentencing judges have been specifically directed to consider past convictions as an aggravating factor, the courts have expressed caution in doing so. In this regard, it has been pointed out that section 9(1) (j) has to be balanced against section 26(2) of the Bill of Rights Act 1990 (NZ), which provides that no one who has been finally convicted of an offence shall be punished for it again. In Ward,23 the court suggested that giving pre-­eminence to the principle of proportionality safeguards against this eventuality.24 However, the courts have begun, especially in the IPV context, to give significance to past convictions that indicate a tendency to commit the particular type of offence for which the offender is being sentenced and a disregard for court orders.25 Of course, a list of past convictions may not reveal which involve family violence and, significantly, in the absence of a narrative of events, but even with such a narrative, the convictions can fail to reveal the serious nature of the underlying offending. Even if the offender has criminal convictions these may  not be obviously related to IPV. Furthermore, those that are may not fully  reflect the serious nature of the underlying behaviour. The FVDRC has noted, for example, that non-­fatal strangulation assaults in New Zealand have tended to result in assault convictions (FVDRC 2014: 99) – in other words, a

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conviction for non-­consensual touching that fails to capture either the risks or harm of the behaviour. In the first hypothetical provided earlier in this paper, convictions for breach of a protection order look like attempted homicides in their narrative detail. However, behaviour is frequently plea-­bargained down in the process of arriving at an agreed statement of facts. In this process a punch can become a slap, and a strangulation to unconsciousness can become putting the victim in a ‘sleeper hold to calm her down’ (Sentencing Advisory Council 2015: 36). A deeper problem is that past convictions are likely to be the tip of the iceberg in terms of the overall pattern of harm that has taken place. Many of the abuse tactics employed to isolate and intimidate the victim in any particular instance may not register as a criminal offence. And even those aspects of the abuse that do satisfy the requirements for an offence will rarely result in a conviction. This is because, in part, the abuse is unlikely to be reported to the police (Sentencing Advisory Council 2015: 2; Ministry of Justice 2014b: 107) and, if reported, will infrequently result in charges being laid, particularly in instances where there are no witnesses to the abuse or evidence of physical injury to the victim (New Zealand Family Violence Clearinghouse 2017). For example, Karen Gelb comments that, while victims of IPV are often ‘repeat victims’, ‘they suffer multiple incidents of violence before calling police or coming to court’ (Gelb 2016: 24). Furthermore, establishing that an offence took place at trial requires discharging the high criminal standard of proof. Relying on the testimony of the victim in this process can be fraught – particularly for those women who remain in coercive circumstances and the longer the period of time that has elapsed between the original incident and the trial. As the Victorian Sentencing Advisory Council (2016: 34) has noted: Even if an incident is reported, victims of family violence may find it difficult to continue with the prosecution; for example, they may feel under pressure not to give evidence in court even if they have made a statement to the police. While the prosecution can still go ahead if there is other evidence, the unwillingness of the victim to give evidence can lead to charges being withdrawn. This means that not only are the dynamics of IPV not captured by the manner in which we have criminalised interpersonal violence, but even when criminal offences do regularly take place as part of this pattern, they are unlikely to result in convictions. It follows that, in the IPV context, much of the historical offending that may have taken place may not be registered in the criminal conviction history of the perpetrator and will thus be hidden from the view of the courts. If there are no prior convictions on the offender’s record then this presents a  significant obstacle to the consideration of past patterns of harm for the

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purposes of making a realistic assessment about what might be required to support victim safety at sentencing. Additional difficulties will be presented when the history of unconvicted abusive behaviour is in respect of prior partners. Issues of proof At sentencing, the facts essential to guilt in respect of the particular incident that resulted in the conviction do not have to be proven. In respect of other facts, section 24(2) of the Sentencing Act 2002 (NZ) provides that if one party asserts a fact that is relevant to the determination of a sentence that is disputed by the other then they may ‘adduce evidence as to its existence unless the court is satisfied that sufficient evidence was adduced at the trial’ (subs (b)). The burden lies on the prosecution to prove any disputed aggravating fact, and to negate any disputed mitigating fact, beyond a reasonable doubt (subs (c)). Either party may cross-­examine any witness called by the other party (subs (e)). What this means is that the burden will lie on the Crown, to the very high standard of criminal proof, to prove at sentencing any past patterns of harm that have not resulted in convictions – to the extent that these have not been already established to have occurred in the original trial. And, given that past abuse is likely to be understood as irrelevant to the incident that forms the basis of the particular offence charged, then it is unlikely that it will be established to have occurred in the trial. As a result, if the defence objects to any suggestion that there is a past pattern of harm at sentencing, then any evidence that suggests that the abuse context is larger than the incident in question is likely to be put aside at this point, unless the Crown insists on a disputed fact trial. For example, the New Zealand sentencing courts are reluctant to consider evidence of previous police family violence call-­outs. In Oliva v. Police,26 the High Court accepted that the sentencing judge should not have taken into account police records of previous family violence call-­outs in which Oliva was recorded as being the offender because none of the call-­outs resulted in convictions. The fact that the offender had had police safety orders granted against him on prior occasions was also ‘put aside’ in Tuumaga v. Police.27 The court is required under section 8(f ) of the Sentencing Act 2002 (NZ) to take into account any information it has concerning the effect of the offending on the victim. A ‘victim impact statement’ will inform the sentencing judge of ‘any physical or emotional harm’, ‘loss of or damage to property’ and ‘other effects of the offence on the victim’.28 However, statements by the victim outlining a past history of abuse by the defendant that has not resulted in convictions will not be considered at sentencing. In Parker v. Police,29 the defendant pled guilty to the offence of male assaults female after ‘sustained attacks’30 to his partner’s head, leaving her with injuries. When he attempted to say that this was a one-­off incident, the sentencing judge referred to the victim impact statement where the victim said that this was not the first time the offender had

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assaulted her. Even the Crown accepted that the judge was wrong to refer to this statement at sentencing and, on appeal, the High Court ‘firmly’ put the statement to one side. In New Zealand, the affidavit evidence that is attached to applications for a protection order is held in the Family Court. These affidavits contain the victim’s account of the history of abuse that has led to her applying for a protection order, including risk indicators for IPV lethality or threats to the children. Such evidence provides the context for any subsequent breach of that protection order. For example, ringing someone in breach of a protection order several times after separation looks like a minor infringement if you are not aware that the person making contact has repeatedly raped the person they are contacting, has degraded them in multiple other ways and has repetitively violated any boundaries that the victim has tried to set throughout their relationship. When that context is considered, not only does the breach no longer seem ‘low level’, but any excuses for the breach can also be understood as a refusal on the part of the offender to acknowledge the impact of his behaviour on the victim or take responsibility for it. While protection order affidavits are not routinely made available to the criminal court, under Rule 432 of the Family Court Rules, the Registrar of a court that is dealing with a criminal proceeding may obtain information that has accompanied a protection order made against the defendant or pending. However, as with the other evidence listed above, should the defendant object to the use of this evidence on the basis that it is an unproven account by the victim that he disputes, then the sentencing court will have to disregard it unless there is a trial of fact in order to allow the Crown to prove the allegations to the required standard. In this case, section 24 of the Sentencing Act 2002 would likely require the Crown to put the victim on the stand and allow them to be cross-­examined by the defence in order to test the veracity of their account. Accurately and plausibly recounting this history under the pressure of cross-­examination will be challenging for the victim if the events in issue have occurred many years in the past and are highly traumatic, particularly if the victim has head injuries or has self-­medicated with drugs or alcohol as a result of their abuse history. Judicial reluctance to accommodate past patterns of abuse at sentencing may well be because of the fear that the extra resources and time required to conduct disputed fact trials within every sentencing process would bring the criminal justice system to a halt. Furthermore, there are obvious difficulties in relying on the victims of IPV to provide testimony under rigorous cross-­examination long after the event in a process that will end up affecting the sentence of the perpetrator. However, it is equally obvious that not considering evidence of patterns of harmful behaviour by the offender means that judges are making sentencing decisions in response to artificially decontextualised incidents of harm. This is potentially dangerous for victims.

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Issues of fairness An additional complication in this context is the ‘fundamental and important principle’ articulated in The Queen v. De Simoni31 that ‘no one should be punished for an offence of which he has not been convicted’. In De Simoni, this manifested in the rather narrower principle that ‘circumstances of aggravation not alleged in the indictment could not be relied upon for the purposes of sentence if those circumstances could have been made the subject of a distinct charge’.32 Still moot is whether, as a matter of procedural fairness, the broader rule articulated in De Simoni applies. In Weininger v. R,33 the High Court of Australia held that it would have been open to the sentencing judge to conclude beyond reasonable doubt that the appellant in this case had previously committed other crimes that he had not been charged with or convicted of. While this would have warranted a heavier sentence, this would not have been to wrongfully sentence him for crimes he had not been convicted of. Rather, it would have been no more than to: give effect to the well-­established principle … that the character and antecedents of the offender are, to the extent that they are relevant and known to the sentencing court, to be taken into account in fixing the sentence to be passed.34 Some of the past patterns of harm that should be considered at sentencing may not fit within the definition of any criminal offence. However, it should not be the case that, when crafting sentences that address victim safety, those that do meet the criteria for a criminal offence should be arbitrarily disqualified from consideration on this basis. The purpose here is not to punish the perpetrator for unconvicted harms but to tailor punishment in respect of the offence that they are convicted for in a manner that prioritises the victim’s safety. Potential reforms There are a number of reform options that would address the need to consider the defendant’s harmful pattern of behaviour at sentencing. One is to simply insist on disputed fact hearings within sentencing decisions in cases involving IPV – regardless of the cost, time and likely success in proving overall patterns of harm. Another is to craft offences that better capture patterns of offending – for example, creating an offence of coercive control – for the purposes of facilitating sentencing responses to the entire pattern of harm perpetrated by the offender and experienced by the victim. The many challenges involved in successfully implementing this strategy have been explored elsewhere and will not be revisited here (Tolmie 2018). Suffice to say, it is likely that, even if such an

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offence were enacted, the courts would still need to respond to victim safety concerns in respect of those elements of the abuse that are prosecuted as traditional criminal offences. Another option is to regularise processes of gathering information about the overall pattern of harm during investigation of the offence in order to put this before the trier of fact during the trial. This would mean that this information had been through a ‘truth testing’ process in the trial, that any objections had been heard, and that it would be available to inform the sentencing response. Such an approach would require employing a ‘whole-­of-story approach’ to taking victim testimony and gathering other evidence – similar to that developed in relation to sexual violence in Victoria (Barnett 2013). Such a radical shift in current practice would require legislative mandate. It would also require considerable development in expertise at every level of the criminal justice system (Sheehy 2018). There is, however, some precedent for taking such an approach. For example, in R v. R,35 the Crown was permitted to lead evidence of the defendant’s overall domination, control and abuse of his family in his trial for individual offences. A final reform possibility is changing the standard of proof at sentencing in respect of issues relevant to victim safety for the purposes of accommodating victim safety in crafting sentences. For example, in many integrated family violence courts, information is free flowing between the family and criminal functions of the court, except for the purposes of establishing guilt under the criminal law. Once guilt is established, however, information that has been generated via family law proceedings can inform sentencing decisions (Lawton 2017: 16). This supports the distinction suggested here between the establishment of guilt and the subsequent sentencing consequences.

Conclusion In this chapter I have described two impediments in New Zealand to responding to victim safety in IPV cases in the sentencing process. One is the fact that victim safety is not an explicit or mandatory sentencing consideration and, in fact, requires some effort to accommodate within the current decision-­making framework. The second is that the offender’s overall pattern of abusive behaviour is unlikely to be before the sentencing judge. Judges may therefore only be equipped to react to the act of offending as an isolated incident. This represents a waste of the opportunity provided by a sentencing intervention to take responsibility for the ongoing safety issues likely to be experienced by IPV victims (Centre for Innovative Justice 2015: 54). It calls for a shift in the paradigm that currently underlies the criminal justice sentencing process.

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Notes   1 This has shifted in more recent years in relation to successive convictions for breaches of protection orders; Mataiti v. Police [2014] NZHC 1675.   2 Cf. R v. Kimiora [2015] NZHC 1940.   3 The position in New Zealand is similar to that in a number of Australian jurisdictions. See Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A; Sentencing Act (NT), s  5; Crimes (Sentencing) Act 2005 (ACT), ss  6–7; Sentencing Act 1988 (SA), s  10 (where community protection is a mandatory sentencing consideration); Sentencing Act 1995 (WA), s 6 (in which proportionality is legislated as the dominant sentencing principle). The position is different in Queensland, where ss 3(b) ad 9(3) of the Penalties and Sentences Act 1992 mean that victim safety (and matters that bear on victim safety) are primary considerations when sentencing for violent offences. In Victoria, for offences involving high levels of physical violence (Clause 2 of Schedule 1), s  6D of the Sentencing Act 1991 provides that the protection of the community takes precedence and overrides the principle of proportionality. The Victorian Sentencing Advisory Council has produced guiding principles for the sentencing of contravention orders (2015), [4.6]. See also s 3 of the Family Violence Act 2004 (Tas).   4 Prominence is given to victim safety when making bail decisions: ss 7, 8(1)(a)(iii), (2)(d), (5) of the Bail Act 2000 and ss 29, 30 of the Victims Rights Act 2002. Furthermore, New Zealand is piloting judges’ ‘bail information packs’ which provide judges with all the information held by police on the defendant’s criminal and family violence history, including police call-­outs, safety orders or protection orders, any breaches of those orders, and victims’ views on bail.   5 R v. Puhi [2015] NZDC 9648.   6 Sterjov v. Police [2015] NZHC 3103, [40].   7 Also not examined are the various regimes designed to manage the risks posed by particular offenders – for example, preventative detention (ss 87–90, Sentencing Act 2002 (NZ)), the three strikes regime (ss  86A-I, Sentencing Act 2002 (NZ)), and public safety orders (Public Safety (Public Protection Orders) Act 2014 (NZ)).   8 R v. Aston [1989] 2 NZLR 166, 171; R v. Puru [1984] 1 NZLR 248, 250, 254; R v. Hiha [1987] 2 NZLR 119, 121.   9 It is arguable that s 5(1)(b) of the Domestic Violence Act 1995 (NZ), setting out the objects of the Act, might require consideration of victim safety when sentencing for breaches of protection orders: Aberahama v. Police [2017] NZHC 1179, [9]. 10 See also s 8(f ) of the Sentencing Act 2002. 11 Joseph v. Police [2016] NZHC 2974, [23]; Beck v. Police [2014] NZHC 931, [20]. 12 Jeffries and Bond (2015: 467) suggest that IPV offenders could be seen ‘as less threatening’ to the community because of ‘the emotional triggers often attributed to violence’ which suggest ‘minimal danger to those outside of the relationship’. 13 [1976] 1 NZLR 588, 591. 14 Gifkins v. Police [2017] NZHC 1399, [30]. 15 R v. Tauariki CA455/03, 15 July 2004, [8]. 16 R v. Taueki [2005] 3 NZLR 372. 17 R v. AM [2010] NZCA 114, [15]. 18 [2016] NZHC 2748. 19 Ibid., [22]. 20 Ibid., [23]. 21 Pre-­sentence reports will provide information about an offender’s circumstances, including past offending and the offender’s response to previous sentences (Hall 2007: 191). 22 Olivia v. Police, HC Auckland CRI-­2010–404–086, [11]. 23 [1976] 1 NZLR 588.

214   Julia Tolmie 24 Ibid., 591; R v. Columbus [2008] NZCA 192, [15]. 25 Beckham v. R [2012] NZCA 290, [84]. 26 HC Auckland CRI-­2010–404–086, [4] – [5]. See also Tuumaga v. Police [2015] NZHC 1695, [31]. 27 [2015] NZHC 1695, [31]. 28 Victims’ Rights Act 2002, s 17(1). 29 [2016] NZHC 2524, [14]. 30 Ibid., [15]. 31 [1980–1981] 147 CLR 383, 389. 32 Ibid., 389. Some jurisdictions have abolished this principle: s  7(3), Sentencing Act 1995 (WA). Others have codified it: s 34(b), Sentencing Act 2005 (ACT). 33 [2003] 212 CLR 629. 34 Ibid, [32]. See s 16A(2)(m) of the NSW Crimes Act 1900. 35 [2015] NZCA 394.

References Bagaric, M. (2000) ‘Incapacitation, deterrence and rehabilitation: flawed ideals or appropriate sentencing goals?’ Criminal Law Journal, 24(1): 21–45. Barnett, M. (2013) A ‘WHOLE STORY’ Approach to Understanding and Investigating Sexual Assault and Child Sexual Abuse, Melbourne: Sexual and Family Violence Specialist Development Unit, Victoria Police. Blacklock, N. and Debbonaire, T. (2012) The Respect Accreditation Standard (2nd edn), London: Respect. Centre for Innovative Justice (2015) Opportunities for Early Intervention: Bringing Perpetrators of Family Violence into View, RMIT University. Chanenson, S. and Hyatt, J. (2016) The Use of Risk Assessment at Sentencing: Implications for Research and Policy, Philadelphia, PA: Villanova University Charles Widger School of Law Public Law and Legal Theory. FVDRC (2013) Third Annual Report: December 2011 to December 2012, Wellington, New Zealand: Health Quality & Safety Commission. FVDRC (2014) Fourth Annual Report: January 2012 to December 2013, Wellington, New Zealand: Health Quality & Safety Commission. FVDRC (2016) Fifth Report: January 2014 to December 2015, Wellington, New Zealand: Health Quality & Safety Commission. Gelb, K. (2016) Understanding Family Violence Court Proceedings: The Impact of Family Violence on the Magistrates Court of Victoria, prepared for the Royal Commission into Family Violence (pp. 163–236). Hall, G. (2007) Sentencing: 2007 Reforms in Context, Wellington: LexisNexis. Hall, G. (2014) Sentencing Law and Practice (3rd edn), Wellington: LexisNexis. Jeffries, S. and Bond, C. (2015) ‘Taking the problem seriously? Sentencing Indigenous and non-­Indigenous domestic violence offenders’, Australian & New Zealand Journal of Criminology, 48(4): 463–482. Lawton, Z. (2017) One Court, One Judge: An Integrated Court System for New Zealand Families Affected by Violence, Wellington: The NZ Law Foundation and the University of Victoria. Marcus, G. (2012) Supporting Women Who Remain in Violent Relationships, Melbourne: Australian Domestic and Family Violence Clearinghouse.

Considering victim safety when sentencing   215 Ministry of Justice (2014a) Domestic Violence Service Provider Code of Practice, Wellington: Government of New Zealand. Ministry of Justice (2014b) New Zealand Crime and Safety Survey, Wellington: Government of New Zealand. New Zealand Family Violence Clearinghouse (2017) Data Summary 2: Violence Against Women, Auckland: The University of Auckland. Roehl, J. and Guertin, K. (2000) ‘Intimate partner violence: the current use of risk assessments in sentencing offenders’, The Justice System Journal, 21: 171–180. Royal Commission into Family Violence [RCFV] (2016) Report and Recommendations, Melbourne: Government of Victoria, Australia. Sentencing Advisory Council (2015) Sentencing of Adult Family Violence Offenders, Final Report No 5, State of Tasmania, Australia. Sentencing Advisory Council (2016) Contravention of Family Violence Intervention Orders and Safety Notices: Prior Offences and Reoffending, Melbourne: Government of Victoria, Australia. Sheehy, E. (2018) ‘Expert evidence on coercive control in support of self-­defence: the trial of Teresa Craig’, Criminology and Criminal Justice Journal, 18(1): 100–114. Stark, E. (2007) Coercive Control: How Men Entrap Women in Personal Life, New York: Oxford University Press. Stubbs, J. (2014) ‘Gendered violence and restorative justice’, in A. Hayden, L. Gelsthorpe, V. Kingi and A. Morris (eds), A Restorative Approach to Family Violence: Changing Tack (pp. 199–210), Surrey: Ashgate Publishing Ltd. Tolmie, J. (2018) ‘Coercive control: to criminalise or not to criminalise?’ Criminology and Criminal Justice Journal, 18(1): 50–66.

Chapter 12

Domestic violence protection orders and their role in ensuring personal security Heather Douglas*

Introduction International agencies have promoted a number of actions to be taken by governments to prevent and eliminate violence against women around the world. One of these actions is to reinforce civil responses to violence against women (United Nations [UN] 1995: [124(b)]). In many countries, including Australia, Canada, New Zealand, the UK and the US, the legal response to domestic and family violence (DFV) has been increasingly focused on civil domestic and family violence protection orders (DVOs) (Goldfarb 2008). DVOs are now one of the most common legal remedies sought by, or on behalf of, women experiencing DFV in these countries (Fleury-­Steiner, Fleury-­Steiner and Miller 2011). Specifically in Australia, DVOs are the most common legal remedy (Taylor et al. 2015). In the state of Queensland, courts made over 48,000 DVOs in 2015–2016 (Magistrates Court of Queensland 2016: 51). Generally, an application for a DVO is made to a court by or on behalf of a person who seeks protection (typically a woman) against their current or previous intimate partner (typically a man) who has been abusive (Taylor et al. 2015). The primary aim of the DVO is to keep the person who seeks the order safe and secure by limiting contact between the abuser and victim/survivor, and demanding ‘good’ behaviour of the abuser (Goldfarb 2008). DVOs also aim to promote the accountability of abusers for their actions. These aims are supported primarily through (the threat of ) criminal prosecution and sentencing for any breach of the DVO (Douglas 2008) and by placing police on notice of potential risk. Thus, DVOs can both supplement criminal justice interventions and provide a remedy in circumstances where the criminal law does not apply (Stark 2007: 66). An Australian judge has outlined the role of DVOs: to provide the protection of the law to vulnerable individuals, usually … women and children, who legitimately fear for their safety. Offenders who disregard such orders and occasion injury to persons whose personal security is intended to be guaranteed through this means must anticipate that an extremely stern view will be adopted by the courts. (R v. Pham [2005] VSCA 57 [21] per Vincent J)

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However, despite their promise and widespread use, their effectiveness, and how this effectiveness is understood, remains contested (Goodmark 2012: 157). In this chapter, I begin with a review of key studies on the effectiveness of DVOs. I then draw upon a qualitative interview study undertaken in Queensland, Australia, to consider women’s perspectives of the ‘helpfulness’ of their DVO. The majority of interview participants were optimistic about the helpfulness of their DVO and identified many reasons for this assessment, including but not limited to improved safety and security.

Previous studies of the ‘effectiveness’ of DVOs Many of the studies that have been undertaken on the effectiveness of DVOs are US-­based studies. Unlike Australia, where most DVOs are applied for by police acting on behalf of an abused woman (Wilcox 2010: 36), in the US the DVO application process does not usually involve the police at any stage. This seems to have created particular difficulties for women in the US, who are more likely to drop out of the DVO application process without receiving an order than their Australian counterparts (Cattaneo, Grossman and Chapman 2016; Durfee 2009; Malecha et al. 2003). A further difference between Australia and the US is that, pursuant to Australia’s constitutional arrangements, national legislation governs family law decisions about property settlement and child contact, while state-­based statutes and courts regulate DVOs. This contrasts with the US where federal law covers both child custody arrangements and DVOs. In Australia, an order made under the national family law system overrides state orders to the extent of any inconsistency, and this has created some issues in relation to police enforcement of DVOs (Laing 2010). Overall, the results of US-­based studies about the effectiveness of DVOs vary significantly. In part, this is because the effectiveness or helpfulness of DVOs is measured in different ways. Most commonly, effectiveness is measured in light of whether the abuse continues or reduces after the order is made and most studies have noted high rates of breach of orders, with between one-­ quarter and two-­thirds being breached (Fleury-­Steiner, Fleury-­Steiner and Miller 2011; Logan and Walker 2009). However, despite the fact that DVOs are often breached, they may be considered successful because they reduce, rather than eliminate, the abuse and the need for police contact. In their study of administrative records involving 933 women victims, US-­based researchers Kothari et al. (2012: 2859; see also Holt et al. 2003; Burgess-­Proctor 2003) found that DVOs were associated with reduced police incidents and emergency department visits, both during the order and after its expiry. They also found that the DVO was linked to changes in the victim’s behaviour, as she was more likely to call the police for incidents that did not involve assault (Kothari et al. 2012: 2860). Similarly, in their US-­based study of DVOs, Chaudhuri and Daly (1992) found that a DVO was associated with an improved police response to incidents.

218   Heather Douglas

Another measure of effectiveness of a DVO is whether the abuser stays away from the survivor once the order is made. Durfee and Messing’s US-­based study found that women were more likely to apply for a DVO when there was no voluntary contact between the parties (2012: 706; Logan and Walker 2009), thereby increasing the likelihood of no contact. The aim of no contact may be a more realistic objective in situations where the parties are no longer living together. Johnson, Luna and Stein (2003) have questioned whether DVOs work better depending on the characteristics of the perpetrator. Sherman’s classic study of arrest (1992: 171–187) identified ‘limited but strong evidence’ for the claim that for men who have a stake in conformity (who are employed, educated and married), arrest produces a greater deterrent effect. However, when Johnson, Luna and Stein (2003) tested Sherman’s hypothesis in a study involving 47 cases of breach of DVO, they found that the employment status of the perpetrator did not differentiate between the breach of DVO group and the non-­ breach group. In determining whether DVOs work, researchers have increasingly considered the perspectives of survivors of abuse. Women who have experienced DFV and engage with the justice system have diverse goals (Cattaneo, Grossman and Chapman 2016; Herman 2005; Westmarland and Kelly 2013), and specifically the needs of those seeking a DVO vary (Chaudhuri and Daly 1992; Ptacek 1999). For example, many women seek a DVO primarily to protect their children (Lapierre 2010; Moe 2009). In their study, involving interviews (n = 10) and surveys (n = 162) with women who had obtained DVOs, Cattaneo, Grossman and Chapman (2016) asked whether the DVO had helped women to achieve their goals. The researchers generated a list of 32 overlapping goals. The four goals most commonly endorsed by the study participants were ‘to stop the respondent from hitting or physically hurting me’; ‘to make the respondent stay away’; ‘to stop the respondent from threatening me’ and ‘to stop the respondent from contacting me’ (Cattaneo, Grossman and Chapman 2016: 2901). The researchers found that, while priority goals related to safety, other nearly universally endorsed goals were more psychological in nature, including moving on with one’s life (Cattaneo, Grossman and Chapman 2016: 2898–2899). For some women, a DVO provides them with a sense of control over their lives and they are generally optimistic about the order’s effectiveness (Logan et al. 2006; Russell 2012; Chaudhuri and Daly 1992). Some women have identified that the DVO helps them to build a paper trail that can be used later for other purposes, and some consider that having a DVO empowers them to make claims on other agencies or offices (Johnson, Luna and Stein 2003: 321). While most studies provide evidence of an overall positive experience, different contextual factors may shift the perspective. For example, Logan and Walker (2009) identified that, while the majority of women experienced the DVO to be at least somewhat effective, women who had previously been stalked and women who had experienced violence of a more serious nature perceived the order to be less

Domestic violence protection orders   219

effective. Given the distinctions between the Australian and US legal systems, it cannot be assumed that the role and helpfulness of DVOs for women in the Australian context will be the same as that for women in the US.

The Queensland Study In this section, I draw on interviews conducted as part of a qualitative interview study that I refer to as the Queensland Study.1 Throughout 2014–2017, interviews were conducted with 65 women (on three occasions over two and a half years) who had experienced DFV and engaged with the legal system. The objective of the study was to explore women’s experiences of engaging with multiple legal processes in the context of DVF over time. The women’s experiences of DVOs were only one aspect of the study. Understanding how women use and experience DVOs is critical to ensuring that DVOs work for the women they are designed to protect (Bell et al. 2011). In this chapter, I have focused on  these women’s perspectives of whether and how DVOs – often referred to by  the participants as ‘pieces of paper’ – are a helpful or unhelpful response to DFV. Methodology For recruitment for the Leaving Domestic Violence Study, the women were approached by their DFV support workers or lawyers from a range of organisations in Brisbane, Australia, who initially discussed the study with them and then arranged interviews if the woman was interested in participating. The women were all over 18 years old, in the six months leading up to the first interview had experienced DFV from their current or previous male intimate partner, and had engaged with the legal system in some way to respond to the violence. Two women heard about the study and contacted me directly, requesting to be involved in the study. At interview 2, participants were asked to complete a survey. One of the survey questions asked them to rank the helpfulness of their DVO from 1 (very unhelpful) to 5 (very helpful). During the interview, I asked the women to provide reasons for their answer. I also asked about their ex-­ partner’s employment, whether he had prior convictions for any offences and whether, from the woman’s perspective, he had breached the DVO, regardless of whether he had been charged for doing so. Pseudonyms are used when referring to the participants’ comments to protect their anonymity, and whether they are from a culturally and linguistically diverse (CALD) background or Aboriginal and Torres Strait Islander (ATSI) background is also identified. The participants The women interviewed for this study were diverse in age, marital status, relationship duration, educational attainment and employment status. At the first

220   Heather Douglas

interview, their mean age was 39 years (SD = 9), ranging from 23 to 68 years. The majority of participants were Australian-­born or had migrated with their families when they were children (n = 40, 61.5 per cent). Six of the women (9 per cent) were ATSI women. Of those 25 (37.5 per cent) women who were born overseas (CALD), nine had been living in Australia for five years or more, 13 for between two and five years, and three for less than two years. Just over half of the participants were never married to the abuser (n = 35, 54 per cent) and 26 (40 per cent) had lived with him. Most of the women had mutual children with their abuser (n = 48, 74 per cent). The women had spent between one and 29 years in their abusive relationships, with a mean relationship duration of 9.6 years. At the first interview, three women were still living with their abuser, and two other women returned to live with their abusive ex-­partner but one of them had separated again by interview three. For those who were separated at interview 1, most (n = 44, 69 per cent) had been separated for less than four years, with 18 (28 per cent) separated for more than one year but less than two years, and 14 women (22 per cent) separated for less than one year. Overall, the participants were highly educated. The highest level of education attained for 28 (44 per cent) women was a university degree (bachelor degree or higher), 16 (25 per cent) had a diploma or advanced diploma, ten (15 per cent) had completed year 12 and 11 (17 per cent) had finished school at year 11 or earlier. Approximately half of the women (n = 30, 46 per cent) were employed either part-­time or full-­time at the first interview. Nearly half of the women (n = 32, 49 per cent) relied entirely on social security payments and, at interview 1, three women had no employment or access to social security because of their visa status. All of the participants had experienced multiple forms of abuse, most had experienced physical abuse (n = 57, 87 per cent) and emotional abuse (n = 51, 78 per cent) during the relationship, and for many of the women the abuse had continued post separation. Post-­separation abuse included stalking, threats concerning children and legal systems abuse (Douglas 2018; Miller and Smolter 2011); and the ‘terror’ experienced post separation continued to limit women’s freedom (Stark 2007: 377). In reflecting on her experience of abuse post separation, Ingrid (CALD) explained: ‘it’s a psychological kind of terror. That is something that he’s doing to this day though. Like he’s kept doing it after separation, so it never – it’s nothing that stops’. Similarly, Anna said, ‘when it’s quiet you think who’s watching, you hear from people – there is stuff going on, that he’s looking for you. Constant terror’. Both women had a DVO, but the abuse continued post separation. Who had a DVO? Most of the women (n = 55) had a DVO at the first interview that was still in place for the second interview between six and ten months later. A majority of the women from CALD backgrounds had a DVO (n = 20 of n = 24). While

Domestic violence protection orders   221

research suggests that people from CALD backgrounds may be reluctant to engage with legal systems (Cavallaro 2010), nearly all of the women in the Queensland Study were recruited from specialist support services and lawyers. The fact that this sample of women had already received advice and support may explain their high level of engagement with the DVO system (Ammar et al. 2012: 346). Nevertheless, despite their connection with support services, not all of the women in the study had a DVO. Seven of the participants – four of them from CALD backgrounds – had no DVO at any time during the course of the study. They had a range of reasons for this. At the first interview, Luciana (CALD) and Bisera (CALD) were living at a shelter and both were reluctant to apply for a DVO. They explained that they felt safe and did not want to risk issues with immigration or their partners finding them. Euni (CALD) explained that she was still living with her partner and trying to work things out. Mira (CALD) thought a DVO would exacerbate problems with her partner. She and her children relied on her partner financially and she believed a DVO might jeopardise his employment. Milly also worried about compromising her ex-­partner’s employment and so did not seek an order. Jane paid lawyers privately to represent her for family law matters and did not want to go to court more than was necessary because of the expense. Shelley’s children made serious allegations against her (that were later proven to be false). Her lawyer recommended against a DVO because it might complicate the family law proceedings. In two cases, women had applied for DVOs but accepted ‘undertakings’ from their partners. An undertaking is an informal promise to the court to be of good behaviour and, unlike a breach of a DVO, a breach of an undertaking is not a criminal offence (AIJA 2017: [7.11]). Jacinta initially applied for a DVO but ultimately accepted an undertaking. She said, I basically turned up and said I don’t want to go through with it simply because I don’t have money to be represented and it was too stressful to try and do everything, find all the text messages [evidence of abuse], present them all and all that sort of stuff. Some of the participants felt pressured by their lawyers to accept an undertaking rather than go to a trial for a DVO. Celina (CALD), a recent migrant on a spouse visa who had separated from her sponsoring partner, said that her lawyer had pressured her to accept an undertaking after her first DVO had expired. In contrast, Sally, who has an intellectual disability, attended court with her support worker for a DVO hearing. She said that when she arrived at court her lawyer ‘pressured her’ to accept an undertaking. However, Sally’s support worker did not think this would provide enough protection and Sally believed the support worker’s advocacy had ensured that she obtained a DVO.

222   Heather Douglas

Helpfulness of the DVO At interview 2, it was possible to ask 54 of the women involved in the study for their perspective on the helpfulness of their DVO. I used the terminology of ‘helpfulness’ to avoid pre-­empting the women’s goals for the DVO (Westmarland and Kelly 2013). The women were presented with a scale of 1–5, with 1 being ‘very unhelpful’ and 5 being ‘very helpful’. As noted in Table 12.1 below, nine women (17 per cent) rated the DVO as very unhelpful or unhelpful; 33 women (61 per cent) rated the DVO as helpful or very helpful; and 12 women (22 per cent) rated the helpfulness of the DVO in the middle of the scale, suggesting mixed feelings or ambivalence about its usefulness. Similar to other studies (Logan et al. 2006; Russell 2012; Chaudhuri and Daly 1992), women were generally optimistic about the helpfulness of DVOs. Similar to Johnson, Luna and Stein’s (2003) US findings, when the women’s perceptions of helpfulness of the DVO was correlated to the violent partner’s characteristics of employment, previous convictions or breach of the DVO, it was difficult to discern any strong patterns between these characteristics and the women’s perceptions of whether the DVO was helpful (see Table 12.1). Like studies undertaken in the US (Fleury-­Steiner, Fleury-­Steiner and Miller 2011; Logan and Walker 2009), most of the women (n = 35, 65 per cent) reported at interview 2 that the DVO had been breached, although in most cases reported breaches of DVOs did not result in criminal prosecution or conviction. Research suggests that criminal prosecution for DVO breaches only occurs in a minority of cases (Westmarland and Kelly 2013). Around half of the women in the Queensland Study (n = 24, 44 per cent) reported that their partner was unemployed and half (n = 27, 50 per cent) reported that their partner had a prior conviction (for any offence). While the largest group of perpetrators (n = 16, 30 per cent) were unemployed, had prior convictions and had breached the order, women’s views about the helpfulness of the DVO where perpetrators fitted this category varied. This suggests that perpetrator characteristics are not a very helpful predictor of how women evaluate the effectiveness of DVOs. The assessment checklist of helpfulness had limited utility because it was vague and answers may have depended on women’s expectations of DVOs (Johnson, Luna and Stein 2003: 321), so the participants were asked to explain their answers. Their comments are explored in the following sections. Ambivalent view of DVOs Notably, the ex-­partners of the five ATSI women were unemployed, had prior convictions and had breached the protection order, yet four of the five were ambivalent about the helpfulness of the DVO (one said it was unhelpful). The four who were ambivalent thought that DVOs could work sometimes or to some degree. For example, Melissa (ATSI) felt that DVOs could work depending on the perpetrator but that, in her case, the DVO was not a deterrent:

n2 (1 – CALD)

n1 (n1 – CALD)

n1

n1

Perpetrator unemployed + prior convictions – no breach

Perpetrator unemployed – no prior convictions + breach

Perpetrator unemployed – no prior convictions – no breach

n2 (1 – CALD)

Perpetrator unemployed + prior convictions + breach

1–2 unhelpful/ n2 very unhelpful

Perpetrator employed – no prior convictions – no breach

Perpetrator employed – no prior convictions + breach

Perpetrator employed + prior convictions – no breach

Perceived helpfulness of DVO at time 2

Perpetrator employed + prior convictions + breach

Table 12.1  Perceived usefulness of DVO (correlated to employment, prior convictions and breaches of the DVO) Total

n4

n9 (17%)

3 ambivalent

n1

4–5 helpful/ very helpful

n4 n1 n6* n5 n7 n2 n2 (n1 – CALD) (n1 – CALD) (n2 – CALD) (n2 – CALD) (n5 – CALD) (n1 – CALD) (n1 – ATSI)

n6* n33 (61%) (n1 – CALD)

Total

n7 (13%)

n16 (30%)

n1 (2%)

n8 (15%)

n8 (15%)

n7 (13%)

n4 (7%)

n1 n6* (n1 – CALD) (n4 – ATSI)

n3 (5%)

Note * Four women did not complete the survey but made comments in their interview consistent with this assessment of helpfulness.

n12 (22%)

n54 (100%)

224   Heather Douglas

if you’re mad, you’re under the influence of drugs, you’re doing whatever, a piece of paper’s not going to stop you. [My ex-­partner] wrote that to me in gaol, ‘It’s just a piece of paper, I’ll get out one day’. But if [he’s] going to do something, he’s going to do it. If I could close doors [he is] the type of person, he’ll kick the door in … [he] kicked the shit out of me one day and he was handcuffed and put in the back of the police car … he kicked the window out.… But I think [DVOs] work to some degree but if someone’s going to do things they’re not going to think, ‘Oh, this is a deterrent’. In a similar vein, Cassy (ATSI) believed that the protection orders work sometimes but, if they get pissed off and they go off – nothing’s going to stop them. Sometimes when you feel like they’re going to just lose it, you just say to them, either stop or I’ll ring the cops. Sometimes you can say that to them, but sometimes … they’ll just flip it. All four of the ATSI women who expressed ambivalence about the DVO had also experienced severe levels of physical violence from their abusers, including broken bones and rape. Seven other women indicated that they had mixed feelings about the usefulness of the DVO. There did not seem to be any connection between the characteristics of the perpetrator and the participants’ ranking. The women expressed a variety of reasons for their ambivalence. Carol’s ex-­partner had been stalking her for many years. She had a DVO and thought that it was useful in the short term but that ultimately it would not protect her: if they do find him, they can lock him up. But I know it’s only – it’s just something that gives me time.… Because without it he’d be inside the house and he’d be living there … I think it does stop that – [but] it won’t stop him killing me, it won’t. Previous research has identified reduced levels of satisfaction with DVOs where stalking is reported (Logan and Walker 2009). Lisa was also ambivalent about the DVO’s helpfulness, although her reasons were connected to her experience of the process of obtaining the order as much as to its effectiveness once it was in place (see also Bell et al. 2011). Lisa’s partner had also applied for a DVO against her. In his statement in support of his application, he alleged that Lisa had previously worked as a sex worker and used drugs for many years in the past. The magistrate asked Lisa to respond to the allegations and she believed that this was inappropriate. Lisa’s ex-­partner eventually withdrew his application and she obtained a DVO. She reported ongoing child contact issues with her partner that she believed made the DVO difficult to manage. Ingrid (CALD) was similarly ambivalent about the DVO:

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He has breached it several times – with calls and various behaviours and I have reported this to the police but because it’s not violence, the police don’t bother to do anything. The fact that there are also family court orders that allow him access to the child is a concern to the police also. As noted earlier, while state-­based statutes and courts regulate DVOs, an order made under the national family law system about children overrides state orders to the extent of any consistency. At interview 2, 37 women in the study had concurrent family law orders and DVOs in place. Inconsistency between these orders and the reluctance of state police to identify breaches of DVOs where family law orders were in place affected the helpfulness of orders for some women in the study. DVOs are unhelpful or very unhelpful Generally, the explanations provided for why orders were seen as unhelpful or very unhelpful included the failure of police to enforce them, that the justice response was insufficient, and that abusers did not care what happened to them so the DVO was not a deterrent. Susan believed that the police failed to respond to her reports of breaches of the DVO and failed to take non-­physical DFV seriously. She reported that, among alleged breaches, her ex-­partner had followed her in the supermarket and made ‘veiled threats’ towards her that she had recorded. Susan observed: men are not being held accountable and I cannot put it down to anything else other than the failure of police at the coal face. Just being completely inept and lazy and not being trained on what constitutes domestic violence. Maybe they are jaded and they see my situation as relative to other women who do come in stabbed … they are not following their operational procedures manual. Similarly, Kim identified her frustration with the apparently selective practices of police in responding to breaches, especially where breaches did not involve physical violence. She had reported many breaches of the DVO to the police, including incidents where her ex-­partner contacted her and where he tried to take their child from primary school. Kim said that the police described these breaches as ‘soft breaches’: Breaches are breaches. There is nothing in the policy and procedure of police that mentions soft breaches. It’s like being a little bit pregnant – either it’s a breach or it isn’t. Incarceration is what needs to happen for breaches. If you want to send a strong message to the Australian public about punishment and consequences … this must include jail.

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Notably, Monica’s circumstances emphasised the danger of some non-­physical behaviours. On the day that her ex-­partner killed someone close to her, Monica had made numerous reports to the police about unrelenting text messaging from her ex-­partner – texts that breached the DVO – but the police had not acted on her reports. The definition of DFV in Queensland law and Australian family law encapsulates coercive control and the wide range of behaviours that underlie it (AIJA 2017: [3.1]); yet participants expressed concern that too often the police focused on physical violence. This approach minimised the seriousness of other non-­physical forms of obsessive behaviour that could indicate a high risk of danger (Campbell et al. 2003). Some women reported that the police did respond but that their ultimate response, or the response of the court in sentencing, minimised the abuser’s behaviour. Shuang (CALD) said, From my experience … he always damages the property but all the time the police came and let him get away and didn’t really do something serious to make him realise he’s very bad and he will get punishment for it. Similarly, Hannah reported multiple breaches and that, although the breaches were prosecuted, the result was ‘a slap on the wrist’. For some participants, it did not matter how well the police and courts responded, the perpetrator was still not deterred. For example, Sandra observed, ‘I never felt like [the DVO] would actually protect us.… If someone wants to do something to you, they don’t care, they’ll do it’. Alex had a similar view. At interview 2, she had attended court on 23 separate occasions for DFV-­related matters over a six-­month period. Alex said that her ex-­partner had instigated almost all of the court applications and that this was a way of exerting control over her. Among other court actions, he had applied to revoke the DVO twice and attempted to reopen the application for the DVO that the court had ordered after a contested hearing. Ultimately, Alex’s ex-­partner had received two short jail sentences because of breach convictions. She commented: Whilst having a DVO gives the police more power, I felt powerless to stop his behaviour and clearly having a DVO has not stopped his behaviour. The only way he has been stopped is by going to jail. However, he has continued to contact people involved in our family court matter not listed [as protected] on the DVO. DVOs are helpful or very helpful Of the 20 women who were from a CALD background and who had obtained a DVO, 14 said that the DVO was either helpful or very helpful. While there was no clear connection between the characteristics of the perpetrator and these women’s conclusions that the DVO was helpful, CALD women commonly

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made comparisons between the assistance they received in Australia in relation to DFV and the support they would expect to receive in their home countries. In many cases, CALD women reported that there was limited recognition of DFV and support in their home country (Ammar et al. 2012: 340). It is therefore likely that Queensland responses to DVF often seemed very positive in comparison to responses in their home country. Some studies have identified that CALD women struggle to engage with support systems in response to DFV because of the many obstacles they face, including language and isolation (Allimant and Ostapiej-­Piatkowski 2011). However, most of the CALD women involved in the Queensland Study were recruited from a specialist support agency and had strong advocacy, which would have influenced their experience of DVOs. Overall, the explanations about how DVOs helped CALD women overlapped considerably. These explanations included that the DVO made the perpetrator stay away, the perpetrator changed his behaviour and stopped being abusive, the DVO improved the police response and the DVO shifted power to the woman and helped set boundaries between her and her ex-­partner. One woman, Anna, also talked about the importance of establishing a paper trail to ensure the abuser is held responsible (Johnson, Luna and Stein 2003). However, despite identifying the DVO as helpful, Anna’s comment is rather ambivalent: they’re just another piece of paper … it’s not his problem, he doesn’t care.… He’s abused the system and that’s my problem.… Like what can I do? Because I don’t feel safe, and I was just denied that the whole time … I’m getting [a DVO] because I know … with having that, although he’ll still get away with it.… They’ll just think the more breaches you put in, the more paper trail there is, there is [more evidence] to prosecute him. Nine of the women, including five women from CALD backgrounds, said that the DVO was helpful because it had ended their contact with the abuser. Notably, five of these nine women, four of them CALD women, did not have children with the abuser, making it easier to cease contact with him. For example, Celina (CALD), who did not have children with the abuser, attributed the cessation of contact between her and her ex-­partner to her ‘piece of paper’. Sally also did not have children with the abuser and had struggled to separate from him. She thought the DVO helped with that process: ‘Because of having that order in place, feeling safe and thinking that I don’t have to worry about it, I don’t have to have any more contact with him because I’m thinking I’m safe. If I see him anywhere I just keep walking past and just ignore him’. Some of the women believed that the DVO helped stop the abuse because their ex-­partners were concerned about the impacts of a breach charge on their lives, including criminal prosecution, deportation or impacts on their employment. These views reflect the hypothesis made by Sherman in his arrest study (1992) that some people have greater stakes in conformity and therefore arrest

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(or, in the context of this chapter, a charge of breach DVO) is more likely to deter the behaviour that may lead to arrest. Tabora (CALD) identified the limits of her order, explaining that she felt safe in Australia because of the DVO but would not feel safe if she had to go back to her home country. She pointed out that her partner had to ‘behave’ in order to stay in Australia as he was on a work visa. Dara (CALD) said, ‘Before I had the protection order he abused me and he was carefree. He was God and he had all the power. Now, the court order made him subject to Australian law’. Dara further explained, ‘Now he is in Australia he is worried about being caught. Before the DVO, he followed me, everywhere I saw him. I was scared. But the court order makes him vanish’. Colleen thought that the DVO was helpful because ‘appearing in court for him was a shock … he’s a proud man and what he wants to do is earn loads more money and he doesn’t want a blot on his character’. In other cases, women pointed out that, once their partners were prosecuted for a breach of the order, their behaviour changed. Jamila (CALD) reported that her ex-­partner had ‘hassled’ her after the DVO was put in place, but then the police charged him with breach and he had to pay a $500 fine. She thought ‘that was very, very good’ because the abuse had stopped after the order had been enforced. In line with previous research (Chaudhuri and Daly 1992), some of the women believed that police responses improved when they obtained the DVO. Both Vera and Francis assumed that the police had ‘flagged’ their houses because of the DVO and that police would attend very quickly if called. Faith said, ‘I think that the DVO has really saved my life’ – after the DVO was made, police had reliably arrived soon after she called them. Skye was also extremely positive about the effectiveness of the DVO and the police response: I think the DVO helps. I am happy to have it. I tell all my friends to get one if they are in this situation. You need to protect yourself and your child. It’s a piece of paper that can save your life. If you do it in the right way, it can stop that person from coming in and hurting you in the end. At the end of the day, if there is a DVO in place, the police are more likely to come. When I have reported the drive-­bys, the police have been here within 5 to 10 minutes. Others talked in terms of their DVO setting boundaries and being empowering. For Frieda, the order ‘got him out of the house’. For Martha, the DVO was ‘very helpful, because we have the Family Court stuff going on and we have to stay in contact. The DVO really boxed him in to the point he had no choice but to behave’. Kirsten explained that the DVO was very helpful because ‘I could not have achieved the inroads that I have made.… It gave me the confidence to set boundaries … gave me confidence that I have never had in my life. I could not have done it without it’.

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Reflections and conclusions Fundamentally, the purpose of a DVO is to ensure the security of a person who has experienced DFV. This chapter has considered women’s experiences of DVOs. The study was undertaken in Queensland, Australia, and included 65 women in total, out of which 54 women provided their views about the helpfulness of their DVO. The following conclusions and reflections are necessarily made in the context of the limitations of the sample and focus of the study.2 The explanations women provided for why orders were unhelpful or very unhelpful to them included the failure of police to enforce them, that the justice response was insufficient, and that abusers did not care what happened to them so the DVO was not a deterrent. Some women identified that police failed to take complaints about non-­physical violence seriously, minimising the seriousness of many controlling behaviours that could indicate a high risk of danger (Campbell et al. 2003). Their comments underline the need for improved awareness among justice professionals of DFV as coercive and controlling behaviour rather than as being incident-­specific (Stark 2009: 1510). An appropriate response to a breach of a DVO is important if DVOs are to deter future abuse, and to ensure that harms against women and their right to freedom from abuse are acknowledged. Several of the women in the study identified reluctance on the part of police to enforce DVOs (under state legislation) where there were also family law orders about child contact (under national legislation) in place, especially where the orders were inconsistent. This is a particular concern in the local Australian context (ALRC/NSWLRC 2010: 132). It is not uncommon for women who use the legal system as part of their response to DFV to be engaged with several different legal remedies, underlining the need for legal responses to DFV to be consistent and to apply similar understandings of DFV within the context in which they operate. All five of the ATSI women in the Queensland Study had experienced severe violence from their partners, including broken bones, and their ex-­ partners had all breached the DVO. Despite this, four of the five ATSI women were ambivalent about the helpfulness of the DVO, explaining that they thought that DVOs could only work ‘sometimes’ or to ‘some degree’. CALD women in the study were more positive about the helpfulness of their DVO, with most finding them helpful or very helpful. While there was no clear connection between the characteristics of the perpetrator and the women’s conclusions that the DVO was helpful, CALD women commonly drew comparisons between the assistance they received in Australia in relation to DFV and the support they would expect to receive in their home countries. Perhaps for both groups their evaluations were linked to their underlying expectations of the legal system. Similar to other studies, the majority of women (n = 33, 61 per cent) were positive about the helpfulness of their DVO (Logan et al. 2006; Russell 2012; Chaudhuri and Daly 1992). Their explanations for this assessment included that

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the DVO made the perpetrator stay away, made the perpetrator change his behaviour and stop being abusive, improved the police response, shifted power to the woman and helped set boundaries between her and her ex-­partner, and contributed to a paper trail that ensured the abuser would be held responsible. While several of the women referred to DVOs as ‘pieces of paper’ in a derisory way, claiming that they do not stop abuse, for some women their ‘piece of paper’ represented a power shift and helped to change the psychological dynamic they had experienced within the abusive relationship. Alex believed that the DVO gave the police more power. For Dara, the shift was greater, both psychologically and practically, as, while the abuser initially had ‘all the power’, the DVO ‘made him subject to Australian law’. For Kirsten, the DVO gave her confidence that she ‘had never had in [her] life’. Similar to other research (Fleury-­Steiner, Fleury­Steiner and Miller 2011; Cattaneo, Grossman and Chapman 2016), the women in this study placed a high priority on acquiring safety and security through the DVO; but the symbolic role of the DVO was also important for many women, and in many cases facilitated their reclamation of what Stark (2009: 1521) would call their ‘psychic space’ and freedom. The women in this study had diverse views about the helpfulness of their DVO and their views were informed by both their experience and their expectations. While similar DVO systems operate in many countries globally, local conditions influence their effectiveness. This underscores the dangers of assuming that a response that works or fails in one country will necessarily work or fail in another.

Notes * Thanks to the women who shared their stories for this research and to Dr Jennifer Bell for her research assistance. This work was supported by the Australian Research Council’s Future Fellowship scheme (project number FT140100796). 1 For more information about this study see the study website https://law.uq.edu.au/ research/our-­research/using-­law-and-­leaving-domestic-­violence-research. 2 For example, this study did not touch upon the increasing concerns about the criminalisation of women through the DVO system (Nancarrow 2016; Fleury-­Steiner, Fleury-­Steiner and Miller 2011).

References Allimant, A. and Ostapiej-­Piatkowski, B. (2011) Supporting Women from CALD Backgrounds Who Are Victim/Survivors of Sexual Violence: Challenges and Opportunities for Practitioners, Sydney: Australian Centre for the Study of Sexual Assault Wrap No. 9, Australian Institute of Family Studies. Ammar, N., Orloff, L., Dutton, M. A. and Hass, G. (2012) ‘Battered immigrant women in the United States and protection orders: an exploratory research’, Criminal Justice Review, 37(3): 337–359. Australasian Institute of Judicial Administration [AIJA] (2017) National Domestic and Family Violence Bench Book, Melbourne: AIJA. Available from: http://dfvbenchbook. aija.org.au/ (accessed 12 April 2018).

Domestic violence protection orders   231 Australian Law Reform Commission and New South Wales Law Reform Commission [ALRC/NSWLRC] (2010) Family Violence: A National Legal Response, Report No 114, Sydney: ALRC/NSWLRC. Bell, M., Perez, S., Goodman, L. and Dutton, M. A. (2011) ‘Battered women’s perceptions of civil and criminal court helpfulness: the role of court outcome and process’, Violence Against Women, 17: 71–88. Burgess-­Proctor, A. (2003) ‘Evaluating the efficacy of protection orders for victims of domestic violence’, Women and Criminal Justice, 15: 33–54. Campbell, J., Webster, D., Koziol-­McLain, J., Block, C., Campbell, D., Curry M.  A., Garry, F., Glass, N., McFarlane, J., Sachs, C., Sharps, P., Ulrich, Y., Wilt, S. A., Manganella, J., Xu, X., Schollenberger, J., Frye, V. and Laughon, K., (2003) ‘Risk factors for femicide in abusive relationships: results from a multisite case control study’, American Journal of Public Health, 93(7): 1089–1097. Cattaneo, L., Grossman, J. and Chapman, A. (2016) ‘The goals of IPV survivors receiving orders of protection: an application of the empowerment model process’, Journal of Interpersonal Violence, 31(17): 2889–2911. Cavallaro, L. (2010) ‘I Lived in Fear because I Knew Nothing’: Barriers to the Justice System Faced by CALD Women Experiencing Family Violence, Melbourne: Victoria Law Foundation and InTouch Multicultural Centre Against Family Violence. Chaudhuri, M. and Daly, K. (1992) ‘Do restraining orders help? Battered women’s experience with male violence and legal process’, in E. S. Buzawa and C. Buzawa (eds), Domestic Violence: The Changing Criminal Justice Response (pp.  227–252), Westport, CT: Auburn House. Douglas, H. (2008) ‘The criminal law’s response to domestic violence: what’s going on?’, Sydney Law Review, 30: 439–469. Douglas, H. (2018) ‘Legal systems abuse and coercive control’, Criminology and Criminal Justice 18(1): 84–91. Durfee, A. (2009) ‘Victim narratives, legal representation, and domestic violence civil protection orders’, Feminist Criminology, 4: 7–31. Durfee, A. and Messing, J. (2012) ‘Characteristics related to protection order use among victims of intimate partner violence’, Violence Against Women, 18(6): 701–710. Fleury-­Steiner, R., Fleury-­Steiner, B. D. and Miller, S. (2011) ‘More than a piece of paper? Protection orders as a resource for battered women’, Sociology Compass, 5/7: 512–524. Goldfarb, S. (2008) ‘Reconceiving civil protection orders for domestic violence: can law help end the abuse without ending the relationship?’, Cardozo Law Review, 29: 1487–1551. Goodmark, L. (2012) A Troubled Marriage: Domestic Violence and the Legal System, New York: New York University Press. Herman, J. L. (2005) ‘Justice from the victim’s perspective’, Violence Against Women, 11: 571–602. Holt, V. L., Kernic, M. A., Wolf, M. E. and Rivara, F. P. (2003) ‘Do protection orders affect the likelihood of future partner violence and injury?’, American Journal of Preventive Medicine, 24: 16–21. Johnson, J., Luna, Y. and Stein, J. (2003) ‘Victim protection orders and the stake in conformity thesis’, Journal of Family Violence, 18(6): 317–323. Kothari, C., Karin Rhodes, K., Wiley, J., Fink, J., Overholt, S., Dichter, M., Marcus, S. and Cerulli, C. (2012) ‘Protection orders protect against assault and injury: a longitudinal

232   Heather Douglas study of police-­involved women victims of intimate partner violence’, Journal of Interpersonal Violence, 27(14): 2845–2868. Laing, L. (2010) No Way to Live: Women’s Experiences of Negotiating the Family Law System in the Context of Domestic Violence, June 2010. Sydney: The Benevolent Society. Lapierre, S. (2010) ‘Striving to be “good” mothers: abused women’s experiences of mothering’, Child Abuse Review, 19: 342–357. Logan, T. and Walker, R. (2009) ‘Civil protective order outcomes: violations and perceptions of effectiveness’, Journal of Interpersonal Violence, 24: 675–692. Logan, T., Shannon, L., Walker, R. and Faragher, T. M. (2006) ‘Protective orders: questions and conundrums’, Trauma, Violence, & Abuse, 7: 175–205. Magistrates Court of Queensland (2016) Annual Report 2015–2016, Brisbane: Magistrates Court. Malecha, A., McFarland, J., Gist, J., Watson, K., Batten, E., Hall, I. and Smith, S. (2003) ‘Applying for and dropping a protection order: a study with 150 women’, Criminal Justice Policy Review, 14(4): 486–504. Miller, S. and Smolter N. L. (2011) ‘“Paper abuse”: when all else fails, batterers use procedural stalking’, Violence Against Women, 17(5): 637–650. Moe, A. M. (2009) ‘Battered women, children, and the end of abusive relationships’, Affilia: Journal of Women and Social Work, 24: 244–256. Nancarrow, H. (2016) ‘Legal responses to intimate partner violence: gendered aspirations and racialized realities’, Griffith University, PhD Thesis. Ptacek, J. (1999) Battered Women in the Courtroom: The Power of Judicial Responses, Boston, MA: Northeastern University Press. R v. Pham [2005] VSCA 57. Russell, B. (2012) ‘Effectiveness, victim safety, characteristics, and enforcement of protective orders’, Partner Abuse, 3: 531–552. Sherman, L. W. (1992) Policing Domestic Violence: Experiments and Dilemmas, New York: The Free Press of Macmillan. Stark, E. (2007) Coercive Control: The Entrapment of Women in Personal Life, New York: Oxford University Press. Stark, E. (2009) ‘Rethinking coercive control’, Violence Against Women, 15 (2): 1509–1525. Taylor, A., Ibrahim, N., Wakefield, S. and Finn, K. (2015) Domestic and Family Violence Protection Orders in Australia: An Investigation of Information Sharing and Enforcement – State of Knowledge Paper, Sydney: ANROWS. United Nations (1995) Report of the Fourth World Conference on Women, Beijing. Available from: www.un.org/womenwatch/daw/beijing/pdf/Beijing%20full%20report%20E. pdf (accessed 12 April 2018). Westmarland, N. and Kelly, L. (2013) ‘Why extending measurements of “success” in domestic violence perpetrator programmes matters for social work’, The British Journal of Social Work, 43(6): 1092–1110. Wilcox, K. (2010) Recent Innovations in Australian Protection Order Law: A Comparative Discussion: Topic Paper 19, Sydney: Australian Domestic and Family Violence Clearinghouse.

Chapter 13

Negotiating women’s safety The mandatory charging debate Holly Johnson and Deborah E. Conners

Criminalising intimate partner violence (IPV) is often hailed as a feminist victory (Randall 2013). Indeed, legal reforms evolved out of a feminist understanding of male partner violence as deliberate acts of violence and control that stem from, and help to maintain, male domination over women (Houston 2014). This shift from broad acceptance of IPV as a private family matter to condemnation as a crime evolved rapidly in North America through a confluence of social science research that suggested arrest was the most effective response for deterring future violence (Sherman and Berk 1984), lawsuits against police in the United States (US) for failing to protect women from violent men (Hirschel and Buzawa 2012), and pressure from activists in the battered women’s movement to end impunity for perpetrators (Dobash and Dobash 1992). Decades on, evidence is mounting that these laws are inconsistently applied and that the benefits are uncertain.

Background Mandatory charging policies were implemented in jurisdictions in Canada and the US beginning in the 1980s (Frye, Haviland and Rajah 2007; Johnson and Dawson 2011), although the administration of these policies varies. Mandatory or presumptive charging and arrest policies1 reduce or eliminate police discretion and specify charges or arrest whenever there are reasonable and probable grounds, while pro-­prosecution policies require prosecutors to use all available evidence to proceed, even if victims are opposed to such action. In favour of mandatory charging are those who see the potential for criminal justice intervention to empower and protect women, validate their experiences, name the violence as a public concern, and express society’s moral outrage at the male domination over and devaluing of women (Coker 2001). Increasing the certainty of arrest and prosecution is deemed essential for countering victim-­ blaming and sexist beliefs among individual men (specific deterrence) and society more broadly (general deterrence), while giving women a choice about whether to pursue criminal charges is said to leave them vulnerable to threats, harassment and intimidation (Coker 2001).

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However, critics point out that mandatory charging policies can be misused against women who use violence defensively or whose partners make false or exaggerated claims to police (Durfee 2012; Fraehlich and Ursel 2014; Frye, Haviland and Rajah 2007; Hirschel and Buzawa 2012), and American research finds that dual arrest occurs more often in police departments with mandatory arrest (Hirschel et al. 2007). Evaluations find that arrest is less effective at deterring men who are already stigmatised by unemployment, residing in socially disadvantaged neighbourhoods or a criminal record (Buzawa and Buzawa 2003; Maxwell, Garner and Fagan 2002). There is some evidence of a possible deterrent effect of police showing up at an IPV call without making an arrest (Xie and Lynch 2017), and when police contact provides an entry point into a coordinated community response that incorporates batterer intervention programmes and support services and advocacy for victims it is found to be more effective at lowering the risk of future violence (Buzawa and Buzawa 2003). Mandatory charging policies are meant to provide a standard against which to hold police accountable for protecting abused women and, in theory, should reduce discriminatory police action (Trujillo and Ross 2008). They are not uniformly applied, however. Charging decisions are based on factors related to the severity of the offence (weapons, injury and perpetrator criminal history), witnesses, perpetrator characteristics (intoxicated, low-­income or minority men), the demeanour of victims and perpetrators, and officers’ views about intimate relationships, attributions of blame and gender roles (Dawson and Hotton 2014; Durfee 2012; Frye, Haviland and Rajah 2007; Trujillo and Ross 2008). In Canada, just 74 per cent of incidents of IPV recorded by police result in charges, with variations from 56 to 88 per cent across jurisdictions (Dawson and Hotton 2014). Canada’s national General Social Survey on Victimiszation found that police visited the scene and took a report or conducted an investigation in only half of cases when they were called to respond to IPV (Barrett, St Pierre and Vaillancourt 2011). Police were less likely to take action in cases involving a high frequency of assaults or threats, victims who feared that their lives were in danger, and women who were older, reported a physical or mental health limitation, practised a religion or spoke a language other than English or French at home. Feminist advocates and legal scholars are conflicted about the wisdom of increasing the power of an oppressive patriarchal and racist criminal justice system over women’s personal choices that carries the possibility of loss of employment for perpetrators, loss of housing and custody of children, stigmatisation and rejection by family or community for victims (Houston 2014). Engaging with the law as a strategy for responding to male violence against women brings risks because law reform is ‘always seriously compromised and circumscribed’ and ‘is always used or interpreted or applied in ways that we had not intended or anticipated’ (Majury 2002: 138). Strengthening the power of institutions whose primary function is to control and punish offers no real empowerment to women or restructuring of gender hierarchies, and does nothing to

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improve the material conditions that produce women’s vulnerability to male violence (Coker 2001; Snider 1994). Furthermore, mandatory policies fail to recognise how women ‘might use the law, purposefully and actively, as a part of a strategic process of challenge and resistance’ (Lewis et al. 2000: 184) and that women often call the police for protection or removal of the man temporarily and do not envision prosecution for reasons related to fear of retaliatory violence or distrust of a justice system that holds uncertain outcomes, or simply because they have achieved their objective of stopping the violence (Barrett, St Pierre and Vaillancourt 2011; Erez and Belknap 1998; Ford 1991; Hoyle and Sanders 2000; Landau 2000). Under mandatory policies, women whose needs are opposed to the needs of the justice system and resist the coercion of the state (or the benevolent protection of the state, depending on one’s viewpoint) by attempting to withdraw from efforts to criminalise their partners are constructed as ‘uncooperative’ and undeserving of sympathy or victim status (Johnson and McConnell 2014; Landau 2000; Randall 2004). Women are forced to engage with the criminal justice system when others call the police, a situation that occurs more frequently for minority women who, for religious, cultural or immigration reasons, do not want police involvement and are already vulnerable to surveillance and control by state institutions (Barrett, St Pierre and Vaillancourt 2011; Coker 2001; Martin and Mosher 1995). Currently little is known about the views of abused women or police concerning the benefits and negative consequences of mandatory charging in Canadian jurisdictions that maintain a commitment to aggressively pursuing violent male partners. This chapter presents the results of a study that interrogates the effects of mandatory charging from these separate perspectives.

Review of previous research from the perspective of abused women In the limited research examining the impacts of police charging from the perspectives of abused women, the complex and changing realities of women’s lives are reflected in their responses to mandatory policies. A mixed-­method study of abused women in two Canadian cities found that 90 per cent of the 58 study participants supported the mandatory charging policy for most cases of IPV (Barata and Schneider 2004). A lower rate of support was found by Novisky and Peralta (2015) in their mid-­western US study of 101 women residing in shelters: 27 per cent of women identified mandatory arrest as ‘always a good thing’ and 35 per cent as ‘good on some occasions’. Women are more likely to support mandatory arrest and charging policies in general than in their own specific case (Barata and Schneider 2004; Coulter and Chez 1997). Minaker (2001) interviewed 15 women, including seven racialised and six Aboriginal women, in Winnipeg, Canada, and identified a gap between women’s needs for understanding, assistance and opportunities to rebuild their lives and the response they received from the criminal justice system. She noted

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a ‘ubiquitous interplay between race, class and gender’ (Minaker 2001: 100), visible in Aboriginal women’s experiences of being turned away by police, the accusation of stupidity towards racialised women, and the lack of translation services for immigrant women. Stereotyping of neighbourhoods and communities, language barriers, and vulnerabilities in relation to immigration status have also been found to affect help-­seeking and the responses of police and others in the criminal justice system (Alaggia, Regehr and Jenney 2012; Gillis et al. 2006). Women report that mandatory policies reduce their choice and control and consequently their ability to manage their safety by engaging strategically with the justice system (Bohmer et al. 2002; Erez and Belknap 1998; Landau 2000; Smith 2001). A US study of 419 women (70 per cent black and 29 per cent white) found that women’s perception of the risks associated with reporting, whether low or high, tended to be accurate; thus, a reduction in women’s control over how to respond to the abuse has the potential to exacerbate the violence targeted at them (Hirschel and Hutchison 2003). Further to this, Landau (2000), in a rare early evaluation of mandatory charging in the Canadian province of Ontario, found that women’s goals were focused more on immediate safety than on charges, and in the context of mandatory charging justice actors see women’s preferences and goals as an impediment to successful prosecution. Implementation practices also affect women’s experiences of the policy when, for instance, they are arrested for defending themselves or are falsely accused of having used violence (Bohmer et al. 2002; Burgess-­Proctor 2012; Frye, Haviland and Rajah 2007; Henning, Renauer and Holdford 2006; Leisenring 2011). In addition, knowledge of mandatory policies has a mixed effect on women’s future willingness to report (Apsler, Cummins and Carl 2003; Gover et al. 2013; Novisky and Peralta 2015; Smith 2001; Thomas 2013). Yet, research in various contexts finds that the negative impacts of mandatory charging may be offset by activating community supports in conjunction with police action (Minaker 2001; Wilson 1998; Han 2003; Lewis 2004; Saccuzzo 1999).

Review of previous research from the perspective of police Very few studies assess police officers’ perceptions of mandatory policies. In an early study with 80 officers in a Midwestern community in the US that upholds a presumptive arrest policy, officers expressed widespread support for the policy but perceptions were mixed about the ability of arrest to prevent IPV (Friday, Metzgar and Walters 1991). Research focusing on 777 officers’ perceptions and attitudes towards a pro-­arrest policy in the state of Arizona found that over half did not consider arrest to be an effective deterrent, only 20 per cent felt that victims are receptive to police intervention, and half wanted to be able to use their discretion about how to handle these calls (Toon and Hart 2005). Hannah-­Moffat (1995) interviewed 17 police officers in the early years of a

Negotiating women’s safety   237

pro-­charge policy in Toronto and found that a minority supported the policy and most felt that domestic conflicts were draining police resources, especially when victims proved to be reluctant witnesses. Most officers resented the policy as an infringement on their discretion. More recently, a study of over 300 police officers in a large city in the western US found that, even though the vast majority of officers disagreed that partner violence should be handled as a private matter and most believed that arrests should be made regardless of victims’ wishes, a large majority were frustrated with repeat calls and felt that partner violence calls took up too much time and too many were for verbal arguments (Gover, Pudrzynska Paul and Dodge 2011). Officers demonstrated a lack of understanding of the gendered nature of partner violence: although the majority agreed that violence stems from perpetrators’ need for power and control, most also believed that victims could easily leave and that women and men are equally violent. Most did not believe that arrest reduces future violence or that mandatory arrest is the best approach, and nine out of ten wanted more discretion. Myhill and Johnson (2016) examined officers’ use of discretion in IPV cases through analysis of police data and field observations in one police force in the United Kingdom. They discovered that some IPV calls were not recorded and an average of one case per day was recorded incorrectly. Police prioritised injurious assaults and often overlooked the risks posed by patterns of harassment and coercive control, which compromised the accurate documentation of histories of violence.

The study An online survey examining the impacts of mandatory charging was conducted in the Canadian province of Ontario from three perspectives: abused women, service providers, and police. Community-­based committees that coordinate violence against women services2 from across the province participated in the design of the questionnaires and recruited participants through postings on websites, newsletters and social media. In total, 293 abused women, 289 frontline service providers and 113 police officers shared their views. A criterion for women’s participation was to have experienced an abusive relationship within the previous five years in Ontario, while service providers and police had to have had direct experience working with female victims of IPV in Ontario in the previous five years. The relatively brief reference period was designed to increase the relevancy of the findings for advocates and policymakers. Recruitment took place between December 2016 and March 2017. This methodology poses some limitations to generalising the results. Participants were not randomly selected and therefore may not be representative of abused women, service providers and police officers in Ontario. The study was conducted in Canada’s two official languages – English and French – which limited the participation of immigrants and refugees. The online format created

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a bias in favour of women who had internet access and a relatively high level of literacy.3 Nevertheless, the sample of women is diverse with respect to age, education, income, language, location throughout the province, and disability. The samples of police officers and service providers contain both females and males and a range of positions and years of experience.4

Legal context With a population of 13.4 million, Ontario is Canada’s largest province, accounting for 38 per cent of the total population. Eighty-­one per cent of Ontario residents reside within metropolitan areas. The Ontario Ministry of Community Safety and Correctional Services oversees policing services and provides training to police, although each municipality is responsible for maintaining an independent police force and complying with provincial directives, including mandatory charging. Towns and rural areas are served by the Ontario Provincial Police which is under the direct jurisdiction of the ministry. Larger police forces maintain special units comprising officers trained to investigate partner violence. A Domestic Violence Court programme that has a pro-­ prosecution focus and provides assistance to victims, specially trained prosecutors and treatment for violent partners as a sentencing option has been implemented in all 54 court jurisdictions throughout the province. Together with a broad base of community supports for women fleeing violence and a multi-­sectoral Domestic Violence Action Plan, an aggressive criminal justice response forms part of a comprehensive plan to address IPV.

Findings of the study The study investigated women’s decisions to involve the police, how the police responded, and perceptions held by women, service providers and police about mandatory charging. This chapter presents the study findings pertaining to abused women and police.5 Decisions to involve the police Reporting IPV to the police was not a criterion for participation and half of the abused women in the study had not reported. This provided an opportunity to examine women’s reasons for not wanting police involvement and whether they were linked to mandatory charging. Among the varied reasons for not reporting the violence the most common was that the violence was not seen as serious enough for police intervention (47 per cent). This is in line with research showing that women seldom involve the police until threats or assaults are frequent and escalating (Barrett, St Pierre and Vaillancourt 2011). The women in this study articulated the decisions they had made within the context and circumstances of their resources and supports, past

Negotiating women’s safety   239

dealings with police, and intimidation by the abuser. Prevalent were concerns directly related to retaliatory violence: 43 per cent were worried that police involvement would make matters worse, 35 per cent believed that involving police would trigger an increase in the violence, and 16 per cent feared that their partners might kill them. One woman specifically cited the mandatory charging policy as a deterrent to reporting, explaining the potential repercussions for her: I would never call them for help specifically because of this policy. There are many times that I would have called for help because I wanted him to be taken away that night, or until he was sober, but I don’t call because of the long-­term consequences. He was charged during another incident when a family member called but I still get in trouble for that. I can honestly say that I think this policy has increased the amount of times I have been assaulted because I could not call for help. One woman described how mandatory charging removes the possibility of police protection for women who do not want to see their partners criminalised, and was concerned about the lack of options: ‘There are times when we may need help to calm our partner down. We may not want them charged. Who can we turn to if there is a mandatory charge policy?’ One-­third (36 per cent) of women did not think that the police would help or thought that there was insufficient evidence (36 per cent), and others did not trust the police (18 per cent), had partners who threatened to have them charged if police were called (12 per cent) or had had negative experiences with police in the past (11 per cent). For a few women, the abusers were police officers. Ethnic minority and Indigenous women were more likely to cite lack of trust in the police (38 per cent compared with 15 per cent of Caucasian women) and to have had negative experiences with police in the past (31 per cent compared with 8 per cent). To illustrate: As a woman of colour, who is now in law school, I still do not trust the police. And I never will. They wield too much power and have never been helpful for me. It would take a lot for me to ever contact them. One-­fifth (19 per cent) of the women did not contact the police because their partners prevented them, while some did not know how to ask for help (25 per cent). Many women thought that they were at least partly to blame for the violence (43 per cent), some did not know it was a crime (17 per cent), and some hoped that it would stop without police intervention (39 per cent). Police action Police laid charges against violent partners in just half (52 per cent) of all reported cases and 65 per cent when the type of abuse that triggered the call to

240   Holly Johnson and Deborah E. Conners

police was physical or sexual assault (as opposed to threats, harassment, property damage or some other type of abuse). Similar to findings from the Canadian victimisation survey (Barrett, St Pierre and Vaillancourt 2011), police were less inclined to lay charges against men whose partners feared them and where women had called police previously: only 47 per cent of cases where police had been called three or more times in the past resulted in charges. This suggests that police may misread the signs of danger that underlie seemingly minor forms of abuse and interpret repeat calls as a ‘problem address’ rather than a sign of ongoing danger that police intervention has done little to disrupt (Stark 2012). Women were almost evenly split among those wanting their partners charged (36 per cent), those not wanting charges (27 per cent) and those who were unsure (34 per cent).6 Police seemed to take these preferences into account, laying charges in most but not all cases where women wanted charges (67 per cent) or were unsure (60 per cent), and in only 32 per cent of cases where women explicitly did not want their partners charged. Some women described the negative outcomes of involving the police: He was charged, and now he is ‘labelled’ and because of that we can never get out of the system. He needs help. Not criminal charges. I needed choices and support. Being referenced as the ‘victim’ is so disempowering. Women need to be uplifted and encouraged and reassured, not re-­victimised by another person (police and typically male) who are now going to tell me what’s better for me instead of the man who I called about. Perceptions of mandatory charging Just half of the women (49 per cent) and a slightly smaller percentage of police officers (45 per cent) described mandatory charging as a good policy for most women most of the time. Police officers were more likely to view the policy negatively (27 per cent compared to 11 per cent of women) and more than one-­ quarter of police officers (28 per cent) and 38 per cent of women would not describe the policy as either good or bad and provided comments that highlighted the complexity of applying the criminal justice system as a solution to IPV.7 Perceptions of mandatory charging were linked to the sex of police officers (55 per cent of female and 39 per cent of male officers said it was good for most women most of the time), and rank (35 per cent of patrol officers, 47 per cent of investigators or IPV supervisors and 77 per cent of other senior positions gave a positive rating). This study supports earlier work by Jaffe et al. (1991) and Hannah-­Moffat (1995), which identified that perceptions of the policy improve with years of experience: those who had worked in policing for over ten years were more likely than officers with less experience to consider it a good policy (54 per cent vs 32 per cent), and this rises to 62 per cent of female officers with more than ten years’ experience (compared to 47 per cent of males).

Negotiating women’s safety   241

Women were more supportive of mandatory charging in general than in their own specific case. Among women who had direct experience with the policy through involvement with the police, 39 per cent felt that the policy was good in their case, the same percentage were undecided, and 16 per cent said that it was a bad policy.8 Only 66 per cent of women rated mandatory charging as a good policy when their preference was for charges and charges were laid, suggesting that what followed from police intervention did not meet women’s expectations in all cases. Women who gave the most positive ratings were those who were unsure whether they wanted their partners charged but for whom police did lay charges: 84 per cent of these women were happy that police assumed responsibility for that decision. To illustrate: I suspect that, had my partner not been removed from my home when he was, I would have sustained much more serious injury or death. The women in this study were asked to identify the top five benefits and top five negative consequences of mandatory charging for them personally, and police were asked about the benefits and consequences for women and their families that they had seen in their work.9 Their impressions differed in ways that are important for understanding what abused women want from a justice system response, how mandatory charging has supported or failed them, and whether or not their goals align with the policy goals. The primary objectives of the mandatory charging policy are to shift responsibility for laying charges from victims to the police so that intimidation by partners is reduced, individual perpetrators and society more broadly get the message that IPV is wrong, and women’s safety is improved. Not surprisingly, police officers identified benefits of mandatory charging that were related to the objectives of police work, such as providing a more consistent response and improving their ability to identify repeat offenders. A majority of both the women and police participants identified as a top benefit that women are not responsible for laying charges (Figure 13.1). As one woman said, ‘It took the responsibility and guilt off of my shoulders. One has enough guilt and blame put on themselves in an abusive relationship’. This woman described how mandatory charging help to overcome the victim-­blaming that keeps women trapped: My ex abused me verbally, physically for over 30 years, the first time he hit me I told his mother, she said I must have done something to deserve it. I never told anyone again until 32 years later when I was strong enough to make it on my own. I told my doctor, I told a judge and I told a therapist, and then I told the cops. They all told me that what I had grown to accept as normal was not right and they took it out of my hands, and charged him with abuse.… I received so much flak from his family, ‘How dare I ruin the family name’ etc. It was easier for me when it was out of my hands.

242   Holly Johnson and Deborah E. Conners

Women able to leave abusive relationships

82

32

Women don’t have to lay charges

61

Women get message that abuse is wrong

68

41

Connects women to community resources

58

27

Women are safer

56

32

Women make changes to reduce danger

49

34

Children are safer

68

38

20 32 29

Partners told abuse is wrong Women not pressured to drop charges

30 28

Police able to identify repeat offenders

29

Partners are referred to resources

13

Partners make attempts to change

34

27 21

6

18 20

Children’s Aid Society involved and helpful Partners reduce/end abusive behaviours

8

Women’s relationships improve

4

11

8

Police provide a more consistent response*

34

0

10

20

30

40 50 60 70 Percentage Women Police

80

90

Figure 13.1 Top 5 benefits of mandatory charging as experienced by women whose partners were charged and police. Note Women were not asked about police providing a more consistent response.

Other women resented feeling blamed for the violence because of their choice to remain in the relationship: I would have preferred they not judge the situation and state that the relationship should be over or that I should break up with my partner. It was disempowering to feel like my choices were wrong and that the violence was somehow my fault and I needed to come to decisions in my own terms. Three in ten women and the same proportion of police recognised the negative impacts on women when their decision-­making control is removed. One woman

Negotiating women’s safety   243

expressed mixed feelings about a policy that removes their control: ‘I think in some cases it is a good policy, to protect women … in some cases (like mine), it is unfair that I had no say in whether my partner was charged or not.’ According to another: Being in an abusive relationship is emotionally complicated and confusing, it’s impossible to think straight. In this case, taking the decision out of the abused person’s hands means there’s one less decision she has to make in that moment, which is a good thing.… [However,] mandatory charging automatically pulls a woman into a system that is not generally well informed about the intricacies of domestic violence or about how to best support victims, which can end up being just another way the woman’s agency and autonomy is taken away from her. Mandatory charging does not protect all women from retaliatory violence: only one in three women cited as a benefit that women are not pressured to drop charges and almost half of the women whose partners were charged were targets of their anger (see Figure 13.2). An assumption behind criminalising violent men is that the actions of the police and courts will provide women with safety, yet almost half of the women in this study said that the penalties imposed had no effect or that their partners breached conditions without penalty. One-­ quarter had partners who abused the justice process by drawing it out or threatened to have the women charged, and one-­quarter stated that their family or community turned against them. The following quote illustrates the fear some women experience, even after violent partners are incarcerated: ‘It was good because it finally removed my partner from my home and I was not responsible for this so I am hopeful there is no chance he will return after he is released from prison next year.’ The top benefit of mandatory charging from women’s perspective is that having partners charged enabled them to leave the abusive relationships, indicating that many women call police once they are prepared to take this step. The women were also more likely than police to say that mandatory charging sends a message to women and their partners that abuse is wrong and were able to connect to community resources, that their safety and the safety of their children improved, and that their partners were motivated to change. In these areas, the goals of the policy align with the benefits these women experienced. This woman whose partner was charged against her wishes feels that mandatory charging was good in her case because her partner was compelled to get help to change his behaviour: ‘He was able to receive the help he needed! Counselling and group. This has changed his behaviour.’ The top negative consequences, according to police officers, are that women are ill prepared for the impacts of criminal justice system involvement on their lives and often do not want their partners charged. These negative aspects were cited by far smaller percentages of women. The police participants were also

Partners angry and take it out on women

46

26

Penalties have no effect on partners

38

Partners breach conditions without penalty

39

28

Partners don’t get help

30

12

Women experience loss of control

29

Women not prepared for impacts of CJS on lives

29

Partners draw out CJS process

63

27

12

Family or community turn against women

32

27

18

Partners threaten to have women charged

46

26

9 21

Charges lead to other financial problems

46

15

Women don’t want partners charged Partners lie or exaggerate to have women charged

10

Violence and abuse gets worse

59

14 14

4

14 12

Relationships get worse Delay receiving financial assistance or child support

14

5

Women have to live in shelters

8

Partner’s criminal record affects ability to work

12 11

6

Loss of primary breadwinner

9

Partner reports woman to CAS, OW, or ODSP* Children’s Aid Society involved and not helpful

9

23

8 8 2 3

Children’s Aid Society takes children 0

10

20

30 40 50 Percentage Women Police

60

70

Figure 13.2 Top 5 negative consequences of mandatory charging as experienced by women whose partners were charged and police. Notes ‘Partner reports woman to CAS, Ont. Works or ODSP’ was included on the women’s questionnaire only. *  Children’s Aid Society, Ontario Works, Ontario Disability Support Program.

Negotiating women’s safety   245

more concerned than women with the financial impacts that can result from criminalising violent men. Many of the officers argued that the diversity of types of abuse and situational contexts to which they are required to respond calls for the use of discretion. They expressed frustration with a one-­size-fits-­all approach and some cited examples of women who did not want charges to be laid: Most of the time it is good; however, there are enough circumstances that are severely impacted in a negative way where [it would be better] if police were able to use some discretion and make a decision by looking at the whole picture and doing what’s really best for the woman and family. A male that just stabbed his wife (aggravated assault) is treated the same as a male who slapped his wife. Both face conditions that they are not to see or contact the victim (appropriate in the aggravated assault but not the assault) and possibly the children if they saw the offence.… This is a very flawed application. It would be nice if there was some discretion allowed for non-­violent incidents … like mischief. Or some discretion for incidents that are extremely minor, like a heated argument that resulted in one partner pushing another. Officers feel like they have no control over the investigation because all they can see is if it’s domestic they must charge. Even if that is not helpful for any of the people involved. In an incident-­based criminal justice system police are mandated to respond to discrete events where the level of danger is measured by injuries and severity of assaults and not by ongoing threats, isolation and coercive control (Johnson et al. 2017; Kelly and Westmarland 2016; Stark 2012). Some officers expressed the view that physical evidence, witnesses and bodily harm should be the threshold for charging and that victims should retain decision-­making over so-­called minor offences such as property damage and harassment: ‘Mandatory charging [should be enacted] only with the presence of physical evidence or credible witnesses, not necessarily in “he said, she said” occurrences’. Another said: [There should be an option] for the victim to not lay charges below the threshold of bodily harm. In situations where a crime has been committed and police believe could continue, charges should be laid. Non-­violent offences e.g. theft, property damage, harassment should be at the discretion of the victim. Discretion appears to be used in any case (Dawson and Hotton 2014). While some women resented the loss of decision-­making control, others felt the negative effects when police used their discretion not to lay charges: I think that mandatory charging would be a great thing IF it were properly enforced. But … it isn’t. Police are extremely reluctant to charge under

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mandatory charging, and they STILL put the onus on the woman to charge her partner, and even then the police still don’t like to be forced to charge someone. It is incredibly frustrating, a woman, reporting domestic violence, because it is still not recognised. The police did not lay charges on my partner and he continued to harass and stalk me. He would show up at my house banging on the door and screaming at me. He would follow me in the hallways at school and teachers had to be on the lookout for him whenever I was around.… I wish that I was even informed about this policy. One patrol officer argued for integrating discretion into the policy while requiring police to consider other options based on input from ‘family and community’: A model of how to integrate an officer’s discretion into the goal of rehabilitation is found in the Youth Criminal Justice Act. We must consider other options/programs, but if it is appropriate we can charge. If the deferral program … is unsuccessful, the charge will proceed. We make these decisions on an individual basis with feedback and involvement of family and community, with the goal of correcting behaviour without the lasting mark of a criminal record. We can do better for victims and families. We need the trust and support of our community partners to achieve this. The investigator cited below was one of the few to specify the risks that come with allowing police to use discretion in IPV cases: I think police need to have a bit more discretion in the calls where there wasn’t anything more than a “push/shove” in the heat of the moment – but I also realize that this may also open a Pandora’s Box. Mandatory charging was brought about for a few reasons – women were not disclosing for fear of retribution, abusers were not being charged appropriately or at all, some officers were not charging appropriately, thus leaving the women and children vulnerable to worse abuse for calling police – so, overall, I do think the mandatory charging is the best solution for current domestic violence incidents.

Where to from here? This study offers a glimpse into the views of abused women and police who have responsibility for laying charges in cases of IPV in a Canadian province where mandatory policies have been in effect for three decades. The results show that some women are conflicted about proceeding further when they call the police for protection, others are clear in their intention to prosecute, and some call police for reasons other than the desire to criminalise their partners. Police use their discretion and fail to lay charges in a great many cases, at times in accordance with victims’ wishes, but some officers’ reasons for wanting the policy altered to allow discretion set the threshold alarmingly high.

Negotiating women’s safety   247

Mandatory charging is based on an assumption that the experiences and needs of all women are best met through a mandated justice system response. But this study reveals uneven benefits. There were women who said that police intervention increased their safety and they were glad to have the responsibility for charging taken out of their hands; yet, for other women, the removal of decision-­making control was disempowering and they were subjected to retaliatory violence from which the justice system failed to protect them. Some said that the long-­term implications of having partners charged was a reason to not report to police in the first place and one-­quarter of the women cited mandatory charging as a deterrent to calling police in the future. Under mandatory charging policies, the choices for women in the moment they are facing violent partners are either to forfeit their decision-­making power and commit to full engagement with the criminal justice system, or to forfeit their right to police protection. At this juncture, it is important to consider how it can be possible to retain strong societal condemnation of IPV while supporting women to make decisions that increase their safety, even when they determine that criminalising their partners is not a long-­term goal. It is essential that these discussions are informed by first-­hand accounts of women’s lived experiences where their goals, safety and security, and not justice system goals, take priority. Policy built not only for women but with direct input from the women affected, which considers their aims and the complexity of their lives and decisions, must become the rule, not the exception, if the justice system is to live up to its promise of providing safety and security to women abused by intimate partners.

Notes 1 Mandatory or pro-­charging policies predominate in Canada while mandatory or presumptive arrest is the more common policy in the US. The authors use the terminology employed in each of the research studies cited. 2 Coordinating committees are multi-­sectoral and include representatives from front-­ line services; justice, health and education agencies; community advocates; and programmes for offenders. 3 Face-­to-face and telephone interviews were offered but only one woman took advantage of this. 4 For a detailed description of the samples, see Johnson and Conners (2017). 5 Study findings pertaining to service providers are available in Johnson and Conners (2017). 6 The remaining 3 per cent did not say. 7 It is perhaps not surprising that a higher percentage of women did not have an opinion on mandatory charging since half had not involved the police, although these women may have opinions formed on the basis of prior experiences with police. 8 Six per cent did not say. 9 Women whose partners were charged and police officers chose the top five benefits and top five negative consequences from extensive lists developed from previous research and input from violence against women coordinating committees across the province.

248   Holly Johnson and Deborah E. Conners

References Alaggia, R., Regehr, C. and Jenney, A. (2012) ‘Risky business: an ecological analysis of intimate partner violence disclosure’, Research on Social Work Practice, 22(3): 301–312. Apsler, R., Cummins, M. and Carl, S. (2003) ‘Perceptions of the police by female victims of domestic partner violence’, Violence against Women, 9(11): 1318–1335. Barata, P. C. and Schneider, F. (2004) ‘Battered women add their voices to the debate about the merits of mandatory arrest’, Women’s Studies Quarterly, 32(3–4): 148–163. Barrett, B. J., St Pierre, M. and Vaillancourt, N. (2011) ‘Police response to intimate partner violence in Canada: do victim characteristics matter?’ Women and Criminal Justice, 21: 38–62. Bohmer, C., Brandt, J., Bronson, D. and Hartnett, H. (2002) ‘Domestic violence law reforms: reactions from the trenches’, Journal of Sociology and Social Welfare, 29: 71–87. Burgess-­Proctor, A. (2012) ‘Backfire: lessons learned when the criminal justice system fails help-­seeking battered women’, Journal of Crime and Justice, 35(1): 68–92. Buzawa, E. S. and Buzawa, C. G. (2003) Domestic Violence: The Criminal Justice Response, Thousand Oaks, CA: Sage Publications. Coker, D. (2001) ‘Crime control and feminist law reform in domestic violence law: a critical review’, Buffalo Criminal Law Review, 4(2): 801–860. Coulter, M. L. and Chez, R. A. (1997) ‘Domestic violence victims support mandatory reporting: for others’, Journal of Family Violence, 12(3): 349–356. Dawson, M. and Hotton, T. (2014) ‘Police charging practices for incidents of intimate partner violence in Canada’, Journal of Research in Crime and Delinquency, 51(5): 655–683. Dobash, R. E. and Dobash, R. P. (1992) Women, Violence, and Social Change, London; New York: Routledge. Durfee, A. (2012) ‘Situational ambiguity and gendered patterns of arrest for intimate partner violence’, Violence against Women, 18(1): 64–84. Erez, E. and Belknap, J. (1998) ‘In their own words: battered women’s assessment of the criminal processing system’s responses’, Violence and Victims, 13(3): 251–268. Ford, D. A. (1991) ‘Prosecution as a victim power resource: a note on empowering women in violent conjugal relationships’, Law and Society Review, 25(2): 313–334. Fraehlich, C. and Ursel, J. (2014) ‘Arresting women: pro-­arrest policies, debates, and developments’, Journal of Family Violence, 29(5): 507–518. Friday, P., Metzgar, S. and Walters, D. (1991) ‘Policing domestic violence: perceptions, experience, and reality’, Criminal Justice Review, 16(2): 198–213. Frye, V., Haviland, M. and Rajah, V. (2007) ‘Dual arrest and other unintended consequences of mandatory arrest in New York City: a brief report’, Journal of Family Violence, 22(6): 397–405. Gillis, J., Diamond, S., Jebely, P., Orekhovsky, V., Ostovich, E., MacIsaac, K., Sagrati, S., Mandell, D. (2006) ‘Systemic obstacles to battered women’s participation in the judicial system’, Violence against Women, 12(12): 1150–1168. Gover, A. R., Pudrzynska, Paul D. and Dodge, M. (2011) ‘Law enforcement officers’ attitudes about domestic violence’, Violence against Women, 17(5): 619–636. Gover, A. R., Welton-­Mitchell, C., Belknap, J. and Deprince, A. P. (2013) ‘When abuse happens again: women’s reasons for not reporting new incidents of intimate partner abuse to law enforcement’, Women & Criminal Justice, 23(2): 99–120. Han, E. L. (2003) ‘Mandatory arrest and no-­drop policies: victim empowerment in domestic violence cases’, Boston College Third World Law Journal, 23(1): 159–191.

Negotiating women’s safety   249 Hannah-­Moffat, K. (1995) ‘To charge or not to charge: front line officers’ perceptions of mandatory charge policies’, in M. Valverde, L. MacLeod and K. Johnson (eds), Wife Assault and the Canadian Criminal Justice System (pp. 35–46), Toronto, CA: University of Toronto Press. Henning, K., Renauer, B. and Holdford, R. (2006) ‘Victim or offender? Heterogeneity among women arrested for intimate partner violence’, Journal of Family Violence, 21(6): 351–368. Hirschel, D. J. and Buzawa, E. S. (2012) ‘The role and impact of primary aggressor laws and policies’, Journal of Police Crisis Negotiations, 12: 165–182. Hirschel, D. J., Buzawa, E. S., Pattavina, A. and Faggiani, D. (2007) ‘Domestic violence and mandatory arrest laws: to what extent do they influence police arrest decisions?’ Journal of Criminal Law & Criminology, 98(1): 255–298. Hirschel, D. J. and Hutchison, I. W. (2003) ‘The voices of domestic violence victims: predictors of victim preference for arrest and the relationship between preference for arrest and revictimization’, Crime & Delinquency, 49(2): 313–336. Houston, C. (2014) ‘How feminist theory became (criminal) law: tracing the path to mandatory criminal intervention in domestic violence cases’, Michigan Journal of Gender and Law, 21(2): 217–272. Hoyle, C. and Sanders, A. (2000) ‘Police response to domestic violence: from victim choice to victim empowerment?’ British Journal of Criminology, 40(1): 14–36. Jaffe, P. G., Hastings, H., Reitzel, D. and Austin, G. W. (1991) ‘The impact of police laying charges’, in N. Z. Hilton (ed.), Legal Responses to Wife Assault (pp.  62–95), Newbury Park, CA: Sage Publications. Johnson, H. and Conners, D. E. (2017) The Benefits and Impacts of Mandatory Charging in Ontario: Perceptions of Abused Women, Service Providers and Police, Ottawa, CA: University of Ottawa. Available from: www.ruor.uottawa.ca (accessed 15 April 2018). Johnson, H. and Dawson, M. (2011) Violence against Women in Canada: Research and Policy Perspectives, Don Mills: Oxford University Press Canada. Johnson, H., Eriksson, L., Mazerolle, P. and Wortley, R. (2017) ‘Intimate femicide: the role of coercive control’, Feminist Criminology, 1–21, doi: 10.1177/155570851177 01574. Johnson, H. and McConnell, A. (2014) ‘Agency and choice: gendered constructions of victim worthiness in Domestic Violence Court’, in J. Kilty (ed.), Within the Confines: Women and the Law in Canada (pp. 185–223), Toronto, Canada: Canadian Scholars’ Press. Kelly, L. and Westmarland, N. (2016) ‘Naming and defining “domestic violence”: lessons from research with violent men’, Feminist Review, 112(1): 113–127. Landau, T. C. (2000) ‘Women’s experiences with mandatory charging for wife assault in Ontario, Canada: a case against the prosecution’, International Review of Victimology, 7(1–3): 141–157. Leisenring, A. (2011) ‘ “Whoa! They could’ve arrested me!”: Unsuccessful identity claims of women during police response to intimate partner violence’, Qualitative Sociology, 34(2): 353–370. Lewis, R. (2004) ‘Making justice work: effective legal interventions for domestic violence’, The British Journal of Criminology, 44(2): 204–224. Lewis, R., Dobash, R. P., Dobash, R. E. and Cavanagh, K. (2000) ‘Protection, prevention, rehabilitation or justice? Women’s use of the law to challenge domestic violence’, International Review of Victimology, 7(1–3): 179–205.

250   Holly Johnson and Deborah E. Conners Majury, D. (2002) ‘What were we thinking? Reflections on two decades of law reform on issues of violence against women’, in M. Eichler, J. Larkin and S. Naysmith (eds), Feminist Utopias: Re-­visioning Our Futures (Vols. 1–Book, Section, pp.  125–140), Toronto: Inanna Publications. Martin, D. L. and Mosher, J. E. (1995) ‘Unkept promises: experiences of immigrant women with the neo-­criminalization of wife abuse’, Canadian Journal of Women and the Law, 8: 3–44. Maxwell, C., Garner, J. H. and Fagan, J. (2002) The Effects of Arrest on Intimate Partner Violence: New Evidence from the Spouse Assault Replication Program, Washington, DC: US Department of Justice, Office of Justice Programs, National Institute of Justice. Available from: www.ncjrs.gov/pdffiles1/nij/188199.pdf (accessed 13 April 2018). Minaker, J. C. (2001) ‘Evaluating criminal justice responses to intimate abuse through the lens of women’s needs’, Canadian Journal of Women and the Law, 13(2): 74–106. Myhill, A. and Johnson, K. (2016) ‘Police use of discretion in response to domestic violence’, Criminology & Criminal Justice, 16(1): 3–20. Novisky, M. A. and Peralta, R. L. (2015) ‘When women tell: intimate partner violence and the factors related to police notification’, Violence Against Women, 21(1): 65–86. Randall, M. (2004) ‘Domestic violence and the construction of “ideal victims”: assaulted women’s “image problems” in law’, Saint Louis University Public Law Review, 23(1): 107–154. Randall, M. (2013) ‘Restorative justice and gendered violence? From vaguely hostile skeptic to cautious convert: why feminists should critically engage with restorative approaches to law’, Dalhousie Law Journal, 36(2): 461–499. Saccuzzo, D. P. (1999) ‘How should the police respond to domestic violence: a therapeutic jurisprudence analysis of mandatory arrest’, Santa Clara Law Review, 39(3): 765–787. Sherman, L. W. and Berk, R. A. (1984) ‘The specific deterrent effects of arrest for domestic assault’, American Sociological Review, 49(5): 261–272. Smith, A. (2001) ‘Domestic violence laws: the voices of battered women’, Violence & Victims, 16(1): 91–111. Snider, L. (1994) ‘Feminism, punishment and the potential of empowerment’, Canadian Journal of Law and Society, 9(7): 75–104. Stark, E. (2012) ‘Looking beyond domestic violence: policing coercive control’, Journal of Police Crisis Negotiations, 12(2): 199–217. Thomas, D. G. T. (2013) ‘Mandatory arrest laws for intimate partner violence: the scales or the swords of justice?’, unpublished thesis, Boulder CO: University of Colorado Boulder. Available from Sociological Abstracts. (1520321773; 201418713). Toon, R. and Hart, B. (2005) Layers of Meaning: Domestic Violence and Law Enforcement Attitudes in Arizona, Washington, DC: US Department of Justice, Office on Violence Against Women. Trujillo, M. P. and Ross, S. (2008) ‘Police response to domestic violence: making decisions about risk and risk management’, Journal of Interpersonal Violence, 23(4): 454–473. Wilson, H. E. (1998) Victim’s Attitudes and Perceptions of the Pro-­arrest Policy, Halifax, NS: Dalhousie University. Xie, M. and Lynch, J. P. (2017) ‘The effects of arrest, reporting to the police, and victim services on intimate partner violence’, Journal of Research in Crime and Delinquency, 54(3): 338–378.

Chapter 14

Criminalising private torture as feminist strategy Thinking through the implications Elizabeth A. Sheehy

Introduction Male violence against women is hidden in plain sight in our culture, our governance, our legal system, and our social welfare programmes. It is so much part of the air we breathe that we often cannot even name it, let alone devise and pursue effective policy and legislative responses. The murder trials of battered women who have killed abusive male partners expose the normalisation of marital rape recast as ‘tension in their sexual relationship’, near-­fatal strangulation as ‘common assault’, and prolonged brutality as ‘marital discord’ (Sheehy 2014: 74, 207). Men’s violence against Indigenous women is treated so casually that those who have fought for their very lives are not recognised as ‘real battered women’ (Sheehy 2014: 197). The banalisation of male violence is maintained not only by cultural and linguistic practices (Romito 2008) but also by the distorting strategies of men’s rights activists (MRAs) (Dragiewicz 2011; Sheehy 2016) and the complicity of neoliberal political agendas. The latter have abandoned the language of male violence against women in favour of ‘gender-­based violence’ – a term so vague and depoliticised that it can signal many forms of violence, including violence against men. This terminology dovetails with the claims of MRAs, who counter that not only are women also violent to men, but also that they are more violent than men. Neutral terminology coupled with MRAs’ attacks on spaces and services dedicated to women survivors have facilitated a constriction of resources dedicated to women and a blurring of who does what to whom. Battered women’s testimony paints a vivid portrait of torture as practised in Canada. Women who have killed men had been subjected to sexual sadism; mock executions; threats to kill their family members, including their children; and sustained efforts to instill dread in them and destroy their personalities (Vallée 1986; Sheehy 2014). Margaret Malott’s husband’s effort to break her through sexual degradation, physical violence and psychological abuse, and to terrorise, interrogate and demoralise her, was so prolonged and deliberate that the definitions of torture used by the World Medical Association (WMA) were easily met (Sheehy 2014: 259).

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According to the WMA, ‘Torture [is] the deliberate, systematic, or wanton infliction of physical or mental suffering … to force another person to yield information, to make a confession, or for any other reason’ (1975). Amnesty International defines psychological torture as: (1) enforced isolation; (2) mono­ polisation of perception (such as the induction of altered states of consciousness through the administration of drugs and hypnosis); (3) induced debility (such as through sleep deprivation); (4) threats; (5) occasional indulgences; (6) demonstrating ‘omnipotence’; (7) degradation; and (8) enforcing trivial demands (1975: 53). Yet ‘wife torture’, as Frances Cobbe (1878) described this form of male violence, remains unnamed and invisible in Canadian society. The process and language used by Canadian lawmakers in their recent rejection of a private member’s bill, Bill C-­242, which would have criminalised non-­state torture, shows how this violence remains hidden and unnamed. This chapter considers the strategy of challenging this banalisation by recasting men’s violence against women as ‘torture’ at the level of domestic criminal law. New language has the potential to name ‘gendered harms’ (Graycar and Morgan 1990), open and sustain the public conversation about male violence against women, and convey battered women’s experience of captivity (Herman 1992). The criminalisation of private torture can also redress discriminatory deployment of the term ‘torture’ that sees it reserved for the crimes of state officials primarily committed against male political dissidents (Charlesworth, Chinkin and Wright 1991; Charlesworth and Chinkin 1993). Using a crime of ‘torture’ to capture men’s violence against women could allow us to isolate dangerous abusers, avoid the mutualisation that so often accompanies domestic violence prosecutions and demand governmental investment in women’s security and their recovery from male violence. On the other hand, criminalisation strategies almost always rebound on the most marginalised – the poor, the racialised, the Indigenous, and, of course, women. Criminalisation is also dependent on the state’s commitment to investigate and prosecute, and is premised on the criminal justice system’s ability to resist the banalisation of men’s violence against women. While criminalisation inevitably presents these dangers, the harms of torture are so very grave that this strategy must be seriously considered. This chapter first briefly situates torture in both Canadian and international law, to demonstrate the legal grounding for a domestic criminal offence that addresses torture by private individuals. Second, it reviews the feminist literature that engages with violence against women as ‘torture’ for the purposes of international law. Third, it examines the case law from Queensland, which created a criminal offence of torture that applies to private individuals in 1997 (Criminal Code Act 1899 Qld, section 320A), to illustrate the advantages and disadvantages of such legislation. Fourth, the chapter recounts the attempt in Canada to pass similar legislation in 2016. Using the submissions made by Department of Justice officials to the legislative committee studying the bill, the

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committee’s deliberations, as well as several other examples where the naming of private torture was emphatically repudiated by criminal justice actors, the chapter concludes that the resistance to criminalising private torture reveals how very political – and potentially important – this effort to name men’s violence against women may be, both domestically and as part of a transnational strategy.

Situating torture in law Canada’s Criminal Code criminalises torture when committed by state actors (Criminal Code 1985, section 269.1). Canada’s international obligations require that we respond, and thus the language of our offence derives from the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture): s

269.1 (1) Every official, or every person acting at the instigation of or with the consent or acquiescence of an official, who inflicts torture on any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding 14 years. … torture means any act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person a

for a purpose including i obtaining from the person or from a third person information or a statement, ii punishing the person for an act that the person or a third person has committed or is suspected of having committed, and iii intimidating or coercing the person or a third person, or

b

for any reason based on discrimination of any kind.

There is authority for the application of the international prohibition to torture committed by private individuals. In General Comment No. 2 to the Convention, the United Nations Committee Against Torture (CAT) says that states must exercise due diligence to prevent, investigate, prosecute and punish torture by private individuals. A state’s failure to do so ‘facilitates and enables’ these  practices, providing de facto permission for their commission (UNCAT 2008: 5). Yet the opening remarks on behalf of Canada in the CAT’s 2012 review of Canada’s sixth periodic report on its compliance with its obligations regarding the Convention against Torture demonstrate how violence against women is conceptualised as a separate and discrete issue outside the realm of fundamental human rights commitments. Mr Kessel stated, ‘It [CAT] should refrain from

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asking questions that fall more squarely within other treaty bodies’ mandates, such as general issues relating to violence against women or trafficking in persons’ (UNCAT 2012). Canada has been criticised for failing to criminalise private torture. In that same review, CAT member Ms Sveaass said: Drawing the State party’s attention to General Comment No.  2, she asked whether Canada would consider amending its legislation to include acts of torture committed by non-­State actors. The lack of specific legislation could result in incomplete investigations or inadequate penalties for such acts. (UNCAT 2012) Ms Gaer, another CAT member, followed, saying that she was: disappointed by the delegation’s remark in the opening statement that the matter of violence against women would be better addressed elsewhere. During the first 12 years of the committee’s existence, she pointed out, women had in fact been invisible. There had been no discussion of gender-­ based torture involving rape, domestic violence, or trafficking in persons. The first step towards preventing further human rights violations must be to put an end to such invisibility. (UNCAT 2012) Her statement supports feminist scholars around the world who have argued for almost three decades that the international prohibition applies to the private torture of women by men, including rape and much domestic violence. Although there has been some progress towards the adoption of this position in the decisions of the International Criminal Court as well as other bodies such as the UN Human Rights Committee, as documented extensively by Sifris (2014), gaps and uncertainties remain in the international law jurisprudence (Sifris 2014; Edwards 2006). Some states have responded to the CAT’s call for domestic criminalisation of torture committed in the private realm. At least 14 jurisdictions have criminalised private torture, including the states of Alabama, California, Michigan and Queensland, and the countries of Austria, Belgium, Brazil, Bulgaria, France, Germany, Malta, Rwanda, Slovenia and Spain. In Canada, Private Member’s Bill C-­242, An Act to amend the Criminal Code (inflicting torture) (2016), proposed that the country join this small number of states by adding to Canada’s criminal law a new offence of ‘inflicting torture’ that would apply to the acts of private individuals. The bill passed the second reading in April 2016 and was sent to the Committee for Justice and Human Rights for study. In its report to the House of Commons the committee unanimously recommended that the bill be abandoned (Standing Committee on Human Rights and Justice [JUST] 17 October 2016).

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The main reason articulated by the committee for this decision was that there are ‘better ways of addressing the issue’. Iqra Khalid, who moved to shelve the bill, relied on the testimony of four Government of Canada representatives when she stated that the proposed law was ‘redundant’ in light of other offences found in the Criminal Code, and that any need to denounce ‘torturous conduct’ could be addressed by the judicial power to increase a sentence based on such an aggravating factor (JUST 17 October 2016). The committee did not engage with whether and how criminalising private torture could assist in denouncing and deterring men’s violence against women. The members were not provided with data about the extent or impact of men’s use of torture against women, how this violence is treated by the criminal justice system, nor with the public policy implications of the proposed reform at a domestic level. What contributions might the feminist literature on international law’s understanding of torture make to a policy-­based consideration of Bill C-­242?

Reviewing the literature The prohibition against torture contained in the Convention against Torture is framed in masculine terms, but it applies to the torture of women by state officials as a matter not only of statutory interpretation but also of human rights. However, ‘women are more likely to suffer violence at the hands of private individuals than by public officials’ (Edwards 2006: 353). Furthermore, according to feminists, crimes of violence against women [VAW] ‘fit’ the criteria for torture. MacKinnon argues that the ‘generally recognized’ purpose of torture is to ‘control, intimidate or eliminate’ those who challenge a regime; thus, rape should be seen as ‘political’ (2006: 18). In addition, ‘the abuse is systematic and known, the disregard is official and organized, and the effective governmental tolerance is a matter of law and policy’ (MacKinnon 2006: 25). Meyersfeld makes the case for domestic violence to be recognised as torture: ‘Due to the severity, the isolation, and the discrimination inherent in private torture, this form of violence against women is an international issue and one that should generate the application of the Convention against Torture’ (2003: 377, italics in original). Feminist legal scholars propose that naming men’s VAW as ‘torture’ would put it on ‘the international agenda’ (Edwards 2006: 198; Meyersfeld 2003) because torture is universally condemned internationally, without qualification or defence (Edwards 2006: 214). Such an interpretation in international law ‘would grant women a right to a remedy of the highest order for violations of their sexual autonomy’ (Edwards 2006: 237). According to MacKinnon, recognising rape as torture in international law would address the double standard whereby torture is seen as heinous because it is done to men as well as to some women (and therefore there must be international standards), but domestic

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violence and sexual assault are minimised because these crimes are committed almost exclusively against women (and therefore international law is not needed) (MacKinnon 2006: 21). Naming it as torture would remove VAW from the shelter of familial privatisation (Resnick 2001: 625), and rescue VAW from the trivialisation used to characterise men’s behaviour in the domestic sphere (Copelon 1994: 296). Recognising rape as torture ‘give[s] the crime specific symbolic significance that recognises it as an affront to personal integrity, rather than as a crime against honor or custom’ (Pearce 2003: 540). Others suggest that recognition of VAW as torture could be used to highlight the inadequate state response to VAW and the discrimination and structural inequalities that support men’s violence (Qureshi 2013: 414; McCorquodale and La Forgia 2001: 209–210). On the other hand, some feminists point out that UN treaty bodies and international courts and tribunals struggle to define and apply the prohibition against torture (Edwards 2006: 205–206). Thus, Edwards focuses on the practical difficulties, including the fact that there is no clear jurisprudence on whether a particular act of rape is severe enough to meet a torture standard (2006: 220–221). She notes that the cases thus far either do not specifically discuss sexual violence – it is instead subsumed under other issues – or use a higher standard of proof for sexual violence because there is no medical evidence to ‘corroborate’ it. Edwards worries that this strategy obscures the fact that women are also victims of ‘traditional torture’ and asks whether we are essentialising women as ‘apolitical victims of “private” male sexual aggression’ (2006: 352). She also notes that women are not the only victims of private torture, which weakens a woman-­focused argument for widening the understanding of torture to include non-­state torture (Edwards 2006: 238). McGlynn points out that ‘torture’ is a gender-­neutral term that masks gendered violations (2008: 77), possibly risking the ‘rhetorical power’ that the word rape, for example, conveys. McGlynn agrees with Edwards that not all acts of rape would plausibly rise to the level of torture in international law. Thus, she cautions that calling some rapes ‘torture’ may introduce a hierarchy of harms (2009: 569). These arguments for and against naming men’s VAW as torture internationally are somewhat more nuanced in the context of the domestic criminalisation of torture. Domestic criminalisation would not require that all crimes of VAW be prosecuted as torture, nor would it force prosecutors, subject to the law prohibiting multiple convictions for the same crime, to choose between prosecuting the crime as torture or as sexual assault, for example. Edwards’s point about essentialising women’s experience of torture as ‘apolitical’ also seems less pressing in the domestic context where, in Canada, according to Department of Justice officials, there has not been a conviction for state torture since it was criminalised in 1985 (cf. Farnsworth 1994). McGlynn’s concern about the neutral language of ‘torture’ has less relevance for Canada, because wife assault has always been prosecuted as ‘assault’, and the crime of

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rape as ‘sexual assault’ since 1983. But there is no doubt that such a law would likely be framed in gender-­neutral terms and would capture men who torture other men, as well as men and women who torture other women and children. Even a crime of ‘domestic torture’, as proposed by some (Queensland Taskforce 2000: 115–116), would produce these results. Finally, feminist activists Linda MacDonald and Jeanne Sarson have emphasised the critical importance of naming ‘torture’. The labels of assault, sexual assault and aggravated assault fail to capture the brutality and intentionality of torture, as well as the devastating aftermath. Their work with torture victims suggests that appropriate naming of the crimes committed against them is a necessary step towards women’s healing. MacDonald and Sarson point out that the resources available to victims of state torture (as mandated by international law) are not available to victims of private torture, leaving them in the hands of those who may be unqualified professionals who have never before encountered torture victims, and massive therapy bills. They argue that a non-­state torture prohibition would serve an educative function for police  and justice system officials and facilitate data collection (Sarson and MacDonald 2016). However, there is certainly reason to be sceptical that we can ever make it ‘safe’ for torture victims to come forward, that we can operationalise an informed police force, and that using the term torture can overcome centuries of bias shaping the prosecution, defence and adjudication of wife torture. There is also no doubt that the domestic criminalisation of torture by non-­state actors will require line-­drawing that risks normalising less extreme forms of wife battering and thereby increasing ‘women’s misery’ (Cobbe 1878). Drafting a private torture offence also may involve additional proof requirements, such as heightened forms of intentionality as well as elements that raise VAW to the level of torture, which may be challenging for prosecutors.

The example of Queensland Queensland enacted its crime of torture in 1999, in response to a case of child torture (R v. Griffin 1998) that sparked public outcry and galvanised the legislature (Douglas 2015: 453). The offence carries a maximum of 14 years’ imprisonment and is defined simply as follows: 320A Torture 1 2

A person who tortures another person commits a crime. In this section—

pain or suffering includes physical, mental, psychological or emotional pain or suffering, whether temporary or permanent. Torture means the intentional infliction of severe pain or suffering on a person by an act or series of acts done on 1 or more than 1 occasion.

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A review of the 56 reported torture cases in Queensland from 1999 to 2017 retrieved through Austlii suggests that torture may be a more common crime than one might have anticipated. Although not all of the torture jurisprudence in Queensland resides in reported decisions (Douglas 2003: 88–91), those published decisions provide some evidence of the advantages and disadvantages of the criminalisation strategy. These cases also suggest that torture is a gendered crime. The 56 cases involved 51 males accused of torture: 43 charged solely or with other men and another eight charged with women. Women outnumbered men as victims at a rate of almost 2:1 (23:12). Half (12) of the women victims were partners or former partners of the accused. The data from the reported cases also shows that a crime of torture will sweep in women as accused. Women as accused numbered at 12, although most were charged jointly with men. Only five women were charged as sole perpetrators of torture, and all were alleged to have offended against children under 16 years of age. The case law emerging from Queensland suggests that the ‘torture’ label is needed to adequately denounce the enormity of the accused’s conduct designed to terrify and demoralise another person. For example, in R v. Rankmore (2002), the accused was convicted of three counts of torture for his acts of terrorising his former partner by threatening and burning her with an iron on two occasions; by holding it over her genitals, breasts and close to her face; and on two occasions brandishing a knife and vowing to cut off her breasts and slash her vagina. R v. West (2007) involved a man who beat his wife with his fists, strangled her until she was almost unconscious, held a rifle to her head, threatened to shoot their child, traced cutting shears over her body while threatening to cut off her breasts and private parts, used the shears to cut off her clothing, her pubic hair and to gouge her genitals; and squeezed her clitoris, causing her severe pain. Thus, Queensland’s offence, according to Douglas, ‘better captures the ongoing nature of the abuse and the emotional impact of the degradation the victim experienced’ (2015: 454). The offence also allows women to name, as torture, men’s acts that would not in themselves lead to criminal charge, including forms of coercive control. In this regard, acts such as hiding a woman’s wheelchair, forcing her to sleep outside, and denying her water or access to a bathroom have been included in torture convictions (R v. HAC 2006; R v. Leedie 2015). The crime of torture is thus capable of capturing a pattern of harms and the cumulative terror that such acts produce in women. The sentences for torture can also be more severe than those ordinarily imposed for domestic violence. The Queensland Court of Appeal stated in 2002 that torture based on repeat domestic violence ought to result in sentences of eight to ten years, down to six years for a guilty plea (R v. Roelandts 2002). In several cases sentences of eight (Leedie; R v. Lumley 2004) and ten years (R v. HAC) were imposed. The Court of Appeal has aggravated the sentence for threatening the victim’s baby and for a history of breaching domestic violence

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orders when in breach at the time of the offence (R v. Peirson 2006). Longer sentences for men who torture female ex-­partners can send a strong public message and, just as importantly, can facilitate women’s escape or provide some years of relief during which they need not look over their shoulder. On the other hand, a torture offence may not be able to fully overcome the banalisation associated with wife assault. Some of the torture sentences are as low as two years of incarceration (R v. White 2004). The court has reduced sentences when the victim was a woman, not a child (R v. Burns 2000), and where the jury findings were limited to one attack as opposed to prolonged or multiple attacks (R v. Burns; R v. White). Trivialising language was used in Rankmore (para 4) when the court stated that the accused ‘took the break-­up of th[e] relationship badly’. In West (para. 4) the court described the relationship as ‘troubled’, and repeated the claim that the accused ‘was under particular stress because of prolonged drought’. In other cases, the court has mitigated the sentence in terms that obfuscate perpetrator responsibility and engage victim-­blaming. In R v. Ottley (2009), the perpetrator’s conduct was characterised as ‘a series of angry responses in a relationship involving considerable pressures’. The court described a ‘volatile’ relationship, focusing on the victim’s alcoholism, drug addiction and mental illness, which, according to the court, resulted sometimes in her being ‘irrational and antagonistic’. In R v. Lumley (2004), the court said that the jury was entitled to rely on the victim’s failure to mention early on that the accused had penetrated her vaginally with a cane, as showing inconsistency in her evidence. In R v. E (2002), the accused’s behaviour was minimised when the court noted that he  liked the victim and described him as imitating the victim’s boyfriend’s behaviour. There are also cases where the prosecution was unable to prove the offence and jury acquittals resulted (R v. Cosh 2007; R v. Summers 2004). The cause of these failed prosecutions cannot be ascertained because in Cosh the court mentioned that the complainant on the night in question had had so much to drink that she had been declined bar service and in Summers the accused had argued defences that may have been sufficient to secure his acquittal. However, it is also possible that, as Douglas has cautioned, proof of intentional infliction of severe pain and suffering was too difficult to establish (2015: 454). Finally, it must be acknowledged that these cases do not tell us whether Queensland prosecutors are charging the crime of torture in appropriate cases. For example, Douglas has identified wife torture cases that were prosecuted as lower-­level crimes such as assault (2003: 88–91). Although she notes that these prosecutorial gaps may be remedied by police, prosecutors and judges gaining more experience with (what was then) a relatively new offence, these gaps also reinforce that successful criminalisation of private torture depends heavily on the will and discretion of police, prosecutors and judges.

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The Canadian experience Activists MacDonald and Sarson have been urging the domestic criminalisation of non-­state torture for over two decades, and cite the example of Queensland to show that it can be done. They began their campaign when, as nurses, they encountered victims of torture. They embarked on the long road of public education and advocacy before Canadian lawmakers and others in the medical and legal systems. They have witnessed fierce resistance along the way from criminal justice actors to the naming of torture as a crime when committed by non-­state actors. For example, after Dustin Paxton was convicted of aggravated and sexual assault for his acts of prolonged and extreme violence against his roommate Dustin LaFortune (CBC 2012), the victim and his mother attempted to submit Victim Impact Statements (VISs) that described Paxton’s acts as torture. However, the Crown attorney insisted that the word ‘torture’ be excised before the statement could be submitted for sentencing, on the basis that the VIS could not be used to denounce the offender but only to relay the physical and emotional impacts on the victim. The offender had not been prosecuted for ‘torture’ and therefore the victim could not use the word in the submission (LaFortune 2015). Similarly, in a first-­degree murder trial of a batterer who ultimately killed his wife, the Crown’s expert witness on domestic violence, social worker Deborah Sinclair, was stopped by the trial judge when she attempted to assign the word ‘torture’ to the perpetrator’s acts and to submit a report on torture by Amnesty International (R v. Hutt 2013). The defence objected to both as ‘inflammatory’ and the judge agreed, barring the witness from speaking to this issue before the jury: ‘This is just bringing it into that dangerous over-­the-top zone that you want to watch out [for] in this case’ (R v. Hutt: 126). Yet the injuries the accused caused to the victim were ‘over-­the-top’, as detailed in the Crown’s opening address, and were undoubtedly caused by Hutt’s acts of torture: Her multiple injuries were obvious, extensive and varied. She had third and fourth degree burns to over 40 percent of her body. Her clothing was adhered to her weeping and infected wounds. Her face was tremendously swollen, she had two black eyes and a broken nose. She had bruises, scabs, rashes all over her body. She had nine rib fractures, seven were old, two were recent. She had two old wrist fractures, and a fracture to her index finger that had healed with a deformity. She had fresh bruising and a laceration to her head. And on top of all of that, when they X-­rayed her body at the autopsy, it was discovered that she had almost 30 airgun pellets embedded in her flesh and 10 scattered throughout her body. (R v. Hutt: 20–21) MacDonald and Sarson finally saw their advocacy take root when Peter Fragiskatos, a Liberal Member of Parliament, agreed to sponsor Bill C-­242 in

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2016. The bill represents the first time that Canadian lawmakers have contemplated private torture. It was supported by the Native Women’s Association, Amnesty International, the Canadian Nurses Association, the Canadian Federation of University Women, and the London Women’s Shelter (Huron 2016). MacDonald and Sarson addressed the committee that studied the bill and submitted a brief, as did a victim of torture. The bill would have added a new section to the Criminal Code: Inflicting torture 268. 1 Every person who inflicts torture on any other person for the purpose of intimidating or coercing that person is guilty of an indictable offence and liable to imprisonment for life. Definition of torture 2 In this section, torture means any act or omission by which severe and prolonged pain or suffering, whether physical or mental, is intentionally and repeatedly inflicted on a person. Interpretation 3 For the purposes of this section, a person is considered to have experienced severe and prolonged mental pain and suffering only if they have suffered a mental injury leading to a visibly evident and significant change in intellectual capability. (Bill C-­242) Thus, the new offence would have required the Crown to prove that the accused committed repeated acts or omissions that both caused and were intended to cause severe and prolonged pain and suffering to another, for the specific purpose of intimidating or coercing that person. When the bill was first discussed in committee hearings, Fragiskatos capitulated almost immediately on two significant aspects of the bill. The initial difficulty was that this offence would have carried a life sentence as a maximum, whereas torture by state officials carries a maximum of 14 years’ imprisonment. It was evident that Fragiskatos, with the aid of parliamentary drafters, chose life  as the maximum sentence to differentiate it from aggravated assault, as explained in the Preamble: Whereas torture includes acts of brutality that may be life-­threatening and may far exceed what might normally be included within the offence of aggravated assault, which carries a maximum punishment of 14 years of imprisonment; And whereas a maximum punishment of life imprisonment would better reflect the harm that is caused to a victim of torture. (Bill C-­242)

262   Elizabeth A. Sheehy

When asked to justify the maximum life sentence, Fragiskatos immediately offered to change it to 14 years, stating that while it was symbolically important, he was prepared to concede ‘to the lawyers in the room’. What was not discussed was whether 14 years is an appropriate ceiling for state torture or whether a higher maximum sentence for private torture was justified. Then, in response to questions about the significance of the different statutory language used for state torture in section 269.1 and for private torture, which has a narrower list of prohibited purposes and requires proof of both repetition and prolonged pain and suffering, Fragiskatos offered to scrap his language and simply adopt the language of section 269.1, minus the references to ‘official’ or ‘officials’. It is unclear whether he made these concessions to smooth the bill’s passage or whether he held no deep commitment to it. Although he later commented that ‘I really believe that the committee gave this an open and honest hearing’ (Huron 2016), his concessions made the bill almost impossible to defend. Committee members were frequently confused about which version of the bill they were debating, and even when clearly focused on a version that simply replicated state torture, the loss of the particular language, proof requirements and penalties earlier proposed in s 268.1 meant that it became more difficult to demonstrate the unique gap the new offence would fill. On the next day of hearings four Department of Justice lawyers appeared before the committee. The focus of discussion was on whether there was any form of a private torture law that the Justice lawyers could live with. After much back and forth and some confusing exchanges, it appeared that the answer was emphatically ‘No’. First, Senior Assistant Deputy Minister for Policy for the Department of Justice, Don Piragoff, insisted that there was no ‘gap’ that this law needed to fill: sexual assault and aggravated assault can be used to punish the acts the bill intended to denounce (JUST 27 September 2016). He then launched into an argument that because the language of C-­242 referred to ‘any person’, prosecutors could choose to prosecute state torture as this ‘lesser offence’. It appears that he was referencing how international law views state-­sponsored torture as highly grievous, and suggesting that private torture is lesser. But his language choice was misleading. The proposed section 268.1’s sentence maximum was identical to or higher than that for state torture, such that describing the offence as ‘lesser’ really begged the question. Further, the proposed offence required proof of the additional elements that the victim’s pain and suffering was ‘prolonged’ and the acts of torture repeated, which would surely have dissuaded prosecutors from resorting to this more challenging prosecutorial option if a state official were involved. Piragoff further argued that this ‘lesser offence’ would cause international mayhem: It also causes all kinds of confusion with respect to our international obligations, as to whether we are abiding and how we implement. It also causes

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confusion to other countries that may be trying to find ways to get out of the convention by saying that if other countries have lesser offences of torture, then why can’t they have lesser offences of torture, so then they won’t have to prosecute their officials directly for the torture they commit in certain countries. (JUST 27 September 2016) Elsewhere in his responses Piragoff seemed to contradict himself. He emphasised how difficult it would be for prosecutors to prove the new offence – even though the most challenging proof requirements are arguably what justifies both the label ‘torture’ when committed by a private individual and the higher sentencing maximum. He warned that prosecutors would be tempted instead to simply charge private torturers with aggravated assault, rather than attempting to prove that the accused intended to inflict severe and prolonged pain and suffering for the purpose of intimidating or coercing another person, and that these acts were repeated. If prosecutors elected aggravated assault, he noted, they would only need to prove intent to assault as a mental element and the prohibited consequences of maiming or endangerment of life as the physical element, without these additional requirements. When asked whether the strategy of simply duplicating the state torture provision and dropping the reference to ‘officials’, as offered by the bill’s sponsor Fragiskatos, would resolve the concerns, Piragoff was adamant that this would only worsen the problem. First, he made the argument that much of the language of state torture would be inapplicable to private torture, such as the need for consent or acquiescence of a state official, and the bar on the defence of superior orders. Second, he suggested that Canada would be unable to fulfil its international reporting obligations: [T]he concern that is expressed in particular by officials at Global Affairs Canada is that if you have another offence called torture and you prosecute that as torture, then how are we abiding by our obligations to prosecute torture when we already have section 269.1 which says that torture is defined in section 269.1, and we have another offence in the proposed new section 268.1 which says inflicting torture is torture? What torture are you talking about? How do you go to the committee and say, ‘Well, no, we didn’t prosecute the person for torture. We prosecuted the person for torture’. (JUST 27 September 2016) When another committee member – Laurie Wright, ADM Public Law Sector, Department of Justice – pursued the issue of the international legal implications of the proposal to criminalise private torture, in order to clarify the problem, she contradicted Piragoff:

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[N]o one here is suggesting that having a separate offence for torture with respect to private actors somehow puts us not in conformity with our Convention against Torture obligations. As long as the existing offence stays as it is, and as long as we continue to undertake the actions that we are to take in order to prevent and discourage torture, we are domestically in conformity. (JUST 27 September 2016) However, she did offer that: The international concern is that there would be from some avenues an argument made that, if there is more than one way of defining torture, they could also water down their own provisions in terms of what they’re criminalizing, and therefore not actually be meeting their obligations. (JUST 27 September 2016) Piragoff stated – at least eight times – that if Parliament wants to punish more harshly those who intend to maim or wound their victims it can do so, but ought not to use any of the language associated with the word ‘torture’. He was asked whether, if it is more serious to commit these violent acts with intention regarding the consequences, then would he suggest a higher penalty than 14 years? Piragoff acknowledged that this would be one way of addressing the problem, but instead suggested (again on multiple occasions) that legislation could simply add intentionality as an aggravating factor for sentencing. However, the common law already permits judges to use intentionality as an aggravating factor for sentencing purposes, so it is not clear what such a reform would have added. When asked which route he recommended for reform, Piragoff demurred, stating that it is not his role to advise the committee; he advises the Government of Canada. Wright made a similar remark, ‘To be clear, we’re not here to put forward a position, so we’re not speaking on behalf of the minister or the department. We’re here to answer questions.’ Piragoff added, ‘We’re here to provide the committee with options to consider, but we have no position to put forward our preference, because we make recommendations to the minister’ (JUST 27 September 2016). When Fragiskatos arrived at the meeting, he reported that he had spoken to Global Affairs and that they held no concerns about the potential impact of the reform on Canada’s ability to uphold its international obligations regarding state torture. Piragoff responded: Our discussion with Global Affairs Canada is what I reiterated to you, their concerns about having two offences of torture. There’s only one offence of torture internationally and there should only be one offence of torture and we should not be having multiple offences of torture. (JUST 27 September 2016)

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Fragiskatos replied that he had spoken to Global Affairs Canada on Friday, only four days earlier. By the next committee date, a letter had arrived from Global Affairs. Its views were ‘consistent with the testimony previously provided by our colleagues at the Department of Justice’, but it disavowed Piragoff ’s repeated claim that enacting two different torture offences would violate Canada’s international obligations: The Convention does not prevent Canada from creating additional new offences containing the word ‘torture.’ The Convention does not prevent or restrict criminalizing the infliction of severe mental or physical suffering by non-­State actors, acting without State acquiescence. In the opinion of Global Affairs Canada, the proposed law does not appear to conflict with Canada’s international obligations. Should this bill become law, Global Affairs Canada believes that Canada could continue to implement its Convention obligations in good faith. (JUST 29 September 2016) However, Global Affairs did suggest: It is possible that, if Canada changes the definition of torture in its domestic law, or expands its understanding of what constitutes torture, other States that practice torture could alter their own domestic laws with a view to avoiding or watering down their obligations. (JUST 29 September 2016) After hearing from a criminal defence lawyer, who also opposed the bill, and engaging in further in camera discussion, the committee voted to abandon the bill, but to recommend that further study of the issue of private torture be pursued by the Department of Justice. Over the four days of hearings, VAW was raised only sporadically: by Fragiskatos, who referred briefly to the support of Megan Walker on behalf of the London Abused Women’s Center; by activists MacDonald and Sarson; and by Wright, who said that her comments were not meant to minimise domestic violence. When a committee member asked whether the proposed crime would assist women who experience domestic violence, Piragoff responded: ‘I’m not sure that it would. We have aggravated sexual assault. Does that make victims feel better than simply having one offence of sexual assault?’ (JUST 29 September 2016) In none of these instances did the committee engage with the issue or consider the benefits and drawbacks of the bill as a response to VAW.

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Conclusion The confusing and contradictory criticisms of the bill advanced by government representatives suggest deep-­seated opposition to calling acts of private citizens ‘torture’. Was this reaction fuelled by anxiety about the significant symbolic, political and economic implications of using ‘torture’ to describe men’s misogynistic violence? For example, MacDonald testified that she and Sarson have supported over 1000 victims of private torture in Canada, and at least 4000 victims worldwide, which may indicate a significant need for resources. Unfortunately, this opposition prevented a clause-­by-clause analysis of the bill and any serious discussion of whether there are policy reasons for criminalising such acts and, if so, how we should define private torture. The committee’s recommendation for further study, combined with the dogged determination of the activists who have pursued the criminalisation of private torture over many years, indicates that this issue will again come before Parliament. When it does, feminists must be ready to weigh in, particularly in light of the mounting evidence of the torture of women in the sex industry, from pornography to prostitution and trafficking, by individual men as well as by gangs and criminal networks (Halverson 2016; Thompson 2011). The arguments and evidence supporting a crime of private torture to denounce men’s VAW, including the experiences of those 14 jurisdictions that already have such laws, can be used to inform feminist advocacy and law reform in other countries around the world. International law not only authorises, but arguably compels domestic criminalisation of private torture, presenting an opportunity for collaborative and comparative work across jurisdictions and among feminist activists, researchers and advocates, whether in government or local or international organisations. The prohibition against private torture allows the naming of the harm for individual women and the creation of an offence that can potentially overcome the discourses of banalisation, mutualisation and justification that plague VAW. It also presents the possibility of prosecuting privatised actors in the policing and prison sectors for crimes of torture. It may thus foster solidarity and movement-­building nationally and internationally, as the torture of women is traced through domestic violence, rape, pornography, prostitution and the institutions that criminalise, imprison and punish women.

References Amnesty International (1975) Report on Torture, 2nd edn, London: Duckworth and Amnesty International. Bill C-­242 (2016) An Act to Amend the Criminal Code (Inflicting Torture). CBC (2012) ‘Dustin Paxton guilty of aggravated and sexual assault’, 6 February 2012. Online, Available from: www.cbc.ca/news/canada/calgary/dustin-­paxton-guilty-­ofaggravated-­and-sexual-­assault-1.1188180 (accessed 13 April 2018).

Criminalising private torture   267 Charlesworth, H. and Chinkin, C. (1993) ‘The gender of jus cogens’, Human Rights Quarterly, 15(1): 63–76. Charlesworth, H., Chinkin, C. and Wright, S. (1991) ‘Feminist approaches to international law’, American Journal of International Law, 85: 613–645. Cobbe, F. P. (1878) ‘Wife-­torture in England’, Contemporary Review, 32: 55–87. Copelon, R. (1994) ‘Recognising the egregious in the everyday: domestic violence as torture’, Columbia Human Rights Law Review, 25(2): 291–368. Criminal Code 1985, c. C-­46 (Canada). Criminal Code Act 1899 Qld (Australia). Douglas, H. (2003) ‘Crime in the intimate sphere: prosecutions of intimate partner violence’, The Newcastle Law Review, 7(2): 79–100. Douglas, H. (2015) ‘Do we need a specific domestic violence offence?’ Melbourne University Law Review, 39(2): 434–471. Dragiewicz, M. (2011) Equality with a Vengeance: Men’s Rights Groups, Battered Women and Antifeminist Backlash, Boston, MA: Northeastern University Press. Edwards, A. (2006) ‘The “feminizing” of torture under international human rights law’, Leiden Journal of International Law, 19(2): 349–391. Farnsworth, C. H. (1994) ‘Torture by army peacekeepers shocks Canada’, New York Times, 26 November. Available from: www.nytimes.com/1994/11/27/world/torture-­byarmy-­peacekeepers-in-­somalia-shocks-­canada.html (accessed 13 April 2018). Graycar, R. and Morgan, J. (1990) The Hidden Gender of Law, Sydney: Federation Press. Halverson, H. (2016) ‘The gender-­based torture found in the pornography industry’, submission to the UN Special Rapporteur on Torture. Available from: http://endsexual exploitation.org/wp-­content/uploads/NCOSE_Report_UN_Final.pdf. Herman, J. (1992) Trauma and Recovery, New York: BasicBooks. Huron, D. (2016) ‘Why Canada has no new law on torture by individuals’, 30 November 2016. Ricochet. Available from: https://ricochet.media/en/1560/why-­canada-has-­nonew-­law-on-­torture-by-­individuals (accessed 13 April 2018). LaFortune, R. (2015) Email correspondence on file with the author dated 10 February 2015. MacKinnon, C. A. (2006) Are Women Human?, Cambridge: Harvard University Press. McCorquodale, R. and La Forgia, R. (2001) ‘Taking off the blindfolds: torture by non-­ state actors’, Human Rights Law Review, 1(2): 189–218. McGlynn, C. (2008) ‘Rape as “torture”? Catharine MacKinnon and questions of feminist strategy’, Feminist Legal Studies, 16: 71–85. McGlynn, C. (2009) ‘Rape, torture and the European Convention on Human Rights’, International and Comparative Law Quarterly, 58: 565–595. Meyersfeld, B. C. (2003) ‘Reconceptualizing domestic violence in international law’, Albany Law Review, 67: 371–426. Pearce, H. (2003) ‘An examination of the international understanding of rape and the significance of labeling it torture’, International Journal of Refugee Law, 14(4): 534–560. Queensland Taskforce (2000) Report of the Taskforce on Women and the Criminal Code, Brisbane: Office of Woemn’s Policy. Qureshi, S. (2013) ‘Reconceptualising domestic violence as “domestic torture” ’, Journal of Political Studies, 20(1): 35–49. Resnick, J. (2001) ‘Categorical federalism: jurisdiction, gender, and the globe’, Yale Law Journal, 111: 619–680. Romito, P. (2008) A Deafening Silence, Bristol: The Policy Press.

268   Elizabeth A. Sheehy Sarson, J. and MacDonald, L. (2016) ‘Seeking equality, justice and women and girls’ human right not to be subjected to non-­state torture’, in J. Scutt (ed.), Women, Law and Culture (pp. 263–281), London: Palgrave. Sheehy, E. (2014) Defending Battered Women on Trial, Vancouver: UBC Press. Sheehy, E. (2016) ‘Defending battered women in the public sphere’, International Journal for Crime, Justice and Social Democracy, 5(2): 81–95. Sifris, R. (2014) Reproductive Freedom, Torture and International Human Rights: Challenging the Masculinisation of Torture, New York: Routledge. Standing Committee on Justice and Human Rights (2016) Minutes of Proceedings, 42nd Parliament, 1st Session 22, 27, 29 September, 6 October. Standing Committee on Justice and Human Rights (2016) Fifth Report, 42nd Parliament, 1st Session 17 October 2016. Thompson, L. (2011) ‘On a street corner near you: pimps as practitioners of torture’, in R.  L. Dalla, L.  M. Baker, J. Defrain and C. Williamson (eds), Global Perspectives on Prostitution and Sex Trafficking (pp. 291–314), Lanham, MD: Lexington Books. United Nations Committee against Torture (UNCAT) (2008) Convention against Torture and other Cruel, Inhuman or Degrading Treatment, General Comment No. 2, 24 January 2008. United Nations Committee against Torture (UNCAT) (2012) Convention against Torture and other Cruel, Inhuman or Degrading Treatment, 48th session, 21 May 2012. United Nations (1984) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Vallée, B. (1986) Life with Billy, Toronto: Seal Books. World Medical Association (1975) Declaration of Tokyo, 29th General Assembly.

Cases R v. Burns, [2000] QCA 201. R v. Cosh, [2007] QCA 156. R v. E, [2002] QCA 417. R v. Griffin, [1998] 1 Qd R 659. R v. HAC, [2006] QCA 291. R v. Hutt, Proceedings at Trial, May 8–9 2013, Ontario Superior Court of Justice, Ottawa, Ontario. R v. Leedie, [2015] QCA 216. R v. Lumley, [2004] QCA 120. R v. Mahony & Shenfield, [2012] QCA 366. R v. Ottley, [2009] QCA 211. R v. Peirson, [2006] QCA 251. R v. Rankmore, [2002] QCA 492. R v. Roelandts, [2002] QCA 254. R v. Summers, [2004] QCA 432. R v. West, [2007] QCA 347. R v. White, [2004] QCA 72.

Conclusion: securing women’s lives Making them count and accounting for men’s violence Kate Fitz-­G ibbon, Sandra Walklate, Jude McCulloch and JaneMaree Maher

Over the last 50 years a wide range of campaigning voices, particularly those inspired by feminist activism and scholarship, have sought to put the ordinary, everyday violence experienced by women (and children) across the globe at the centre of any agenda for social change. This has not been an easy path to follow. Struggles have persisted concerning how to understand such violence and how to measure it. Those struggles have often become entangled in the questions of who does what to whom (Hester 2013) and whether or not the answers to such questions are gender symmetrical or not. Much of that work has confined itself, historically, to making sense of such violence(s) as they occur between intimate partners known to each other in the confines of their relationship. The debates that this focus generated largely took for granted the presumption that private violence and public violence were separate and separable. This collection challenges those constructions and the domain assumptions in which they are rooted. Here, what is understood as risky, who the risky are, from whom they are at risk and how risk should be responded to, are our core questions. What is security, for whom and from what, is similarly central. Taking intimate partner violence (IPV) as the focus and the most common form of gendered violence confronting women globally, this collection seeks to undo and then remake the dominant constructions and understandings of risk and security. In the 1970s second wave feminists insisted that the personal was political, rejecting the accepted divisions between public and private that disadvantaged and harmed women and children. The cultural, social and legal norms that conceived of a ‘man’s home as his castle’ and wives and children as his property, created a context of impunity for male violence against their female intimate partners. The police and courts typically failed to deal with such violence as ‘real’ or serious and women encountering such violence were silenced and not supported by state agencies in meaningful ways. This lack of response meant that IPV was essentially rendered invisible. It remains so in some countries and social circumstances contemporarily. Nevertheless, intimate partner violence is now widely seen across the globe as a pressing issue that costs communities, societies and individuals, particularly women and children, dearly. The interconnected impacts on national economies, employment, housing security,

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women and children’s health and well-­being, and human rights are increasingly recognised and documented. The UN Sustainable Development Goals cite gender, gender equity and gender relations as critical international concerns for the foreseeable future. Central to these concerns is violence against women in all its forms: wartime, peace-­time and in post-­conflict situations. Increasingly, against this backdrop, intimate partner homicides are examined through death review processes and state and non-­government counting exercises (see, for example, Cussen and Bryant 2015). Simultaneously, in many countries, an expanding plethora of laws addressing IPV have been passed and it is now considered core business by many police organisations. Such positive changes are worth acknowledging and celebrating, particularly as these have been achieved following the hard work and commitment of many feminist activists and advocates. Yet progress is not straightforward or linear and in some instances reforms implemented with the professed aim of better responding to or preventing violence against women and addressing IPV have had adverse consequences for women who experience such violence. Thus it is important also to acknowledge that women’s experiences of all forms of gendered violence, including IPV, are embedded in structural conditions of gender inequity. As Jan Jordon’s chapter demonstrates, the idea of women as property persists, if not in law, then in the multiplicity of ways – old and new – in which women are objectified. Indeed, Leda Lozier’s chapter underlines the way that cultural narratives normalise violence against women. As Dake (1992: 33) argues, shared world-­views ‘provide powerful cultural lenses, magnifying one danger, obscuring another threat, selecting others for minimal attention or even disregard’. The values that sustain men’s violence against women ‘exist throughout the width and breadth of popular culture’ (Mooney 2007: 169). This collection builds on the work of previous generations of feminists who have challenged and transgressed the false and unhelpful dichotomy of public and private violence(s) to expose, address and prevent IPV. It seeks to bring other dimensions of this dichotomy into the frame. The contrast between what counts as ‘public’ and ‘terrorism’ is increasingly being questioned (Walklate et al. 2017a). This work asks why countering ‘public terrorism’ – most commonly understood, at least from a Western perspective, as ‘Islamic terrorism’ – is afforded more state attention and resources than intimate or private terrorism, or IPV? The latter’s toll, in terms of lives lost, being far more significant. Why is it that women’s security is not taken seriously as part of a national security agenda, and how can we ensure that women’s lives are seen to ‘count’ in the same way as those killed in terrorist incidents? The failure to include IPV as the most serious threat to women’s security on national security agendas perpetuates the history of failing to take seriously women’s experiences of ‘private’ violence. While there are many examples of states being increasingly willing to respond to IPV as a crime, this type of violence is not seen as threatening society or ‘our way of life’, although the nature, extent and impacts of IPV warrant such a framing. The risks are increasingly known and understood but the outcomes are

Conclusion   271

still accepted. The dichotomy between public threats and private dangers persists. Each of the chapters in this collection starts from transgressing this conceptual dichotomy and attempts to better understand IPV and its harms. Each chapter differently documents, examines and analyses the limits and opportunities of current attempts to address or prevent violence against women and imagines what it would mean to take the risk to women’s lives and women’s security seriously in ways that would work to end such violence and promote a sustainable ‘peace’. In combination, all of the chapters reveal that there are no ready solutions. Complexities exist at every level and in every context. As Chapter 2 by Anette Bringedal Houge and Inger Skjelsbæk demonstrates, having conflict-­ related sexual violence against women recognised and securitised at an international level does not translate into better security for women in times of conflict. Moreover, this can also work to create an unhelpful dichotomy between the hypervisibility of gendered violence in conflict compared to the (relative) invisibility of such violence post conflict. Thus the framing of violence against women and IPV, in particular, as a security issue will not alone necessarily improve women’s security. Security as a concept and as a practice will need to be carefully and critically examined if it is to work to increase the substantive and everyday security of women. This takes understandings of security into the realm of the everyday rather than being constituted as exceptional. However, the desire to make women’s lives count obliges us to consider which women we are counting and what violence we are addressing. Understanding IPV as a gendered crime that impacts overwhelmingly women and children only touches the surface of the power dynamics that fuel such violence, how it is perceived, and how it is responded to. Women have diverse experiences, resources and status contributing to their risks of experiencing violence and their ability to request and receive assistance, support and justice. Floretta Boonzaier’s chapter points out that histories of colonisation produce harmful stereotypes based on prejudice about who are likely to be victims. The chapters by Gema Varona, Yolanda Ortiz-Rodríguez and Jayne Mooney, and Marie Segrave demonstrate how precarious immigration status, ethnic minority status, being a mother and being young can exacerbate the risks and harms of IPV and create barriers that make it more difficult for women to seek assistance. Bridget Harris notes that ‘space’, both physical and virtual, and women’s location and connections, positive and negative, through such spaces also impact on how different women experience IPV, as well as how they access assistance and protection. All of these contributions reveal much about the divergent nature of women’s experiences both within and beyond national borders. Indeed the ever-­present virtual world can transgress national and international borders, rendering the reach of violence almost infinite. As a result, women’s experiences of violence(s) are not only cultural and economically diverse, they are also digitally diverse.

272   Kate Fitz-Gibbon et al.

Apart from thinking in a more nuanced way about which women we are addressing and where and when we examine intimate partner violence, the chapters here urge us to think about perpetrators in more nuanced and sophisticated ways. A number of the contributors point to the structural and social factors that facilitate and sustain violence against women and IPV. Many of the chapters, including those by Marie Segrave and Nancy Wonders, point out that states not only exacerbate the structural conditions producing the risks of violence, but directly coerce and control women as both citizens and non-­citizens. States too should be understood as collaborators and facilitators of IPV. Taken together these chapters make it clear that IPV needs to be understood and tackled at multiple levels beyond the individuals directly involved. Effective action against intimate partner violence requires sustained responses at the global, state and local levels to end gender inequality. Critical to this end are environmental issues, poverty and the divisions, often along ‘race’ and ethnic lines, underpinning other dimensions of social and economic inequality. Appreciating the interconnections between gender inequality and these other less visible sources of risk and (in)security is vital to both challenge and move these conceptual agendas forward. Of course, there are tensions between addressing women as a category or group and women as individuals. While many of the chapters call for better recognition of the diverse experiences, expectations and needs of women, much research and many reforms work at an aggregate level so that success is understood in terms of whether or not, on balance, more women are helped than harmed. As such, it is important to recognise that policies, responses or approaches that contribute to some women’s safety and security may impact negatively on other women. When criminal justice responses to IPV are strengthened, for example, minority and Indigenous women in particular are often harmed through criminalisation (see, for example, Blagg 2008: 136–52). The taken for granted way in which pro-­arrest policies for offenders of IPV have been embraced with tempered regard for their unintended consequences, as explored here by Holly Johnson and Deborah Conners, provide an example of a criminal justice response to IPV that has disadvantaged and harmed some women. This collection in various ways addresses the question of what concerns women who experience IPV. As Heather Douglas’ chapter on civil protection orders makes clear, women have diverse needs and expectations of the police, courts and the criminal justice system. Holly Johnson and Deborah Conners’ chapter on mandatory (or presumptive) charging of IPV offenders touches on the contentious issue of purporting to protect women by vetoing their agency and any ‘choice’ they may have made in relation to criminal justice interventions. Those who support such policies maintain that they relieve women victims of responsibility in circumstances where their autonomy is likely to be compromised and can promote safety. On the other hand, critics maintain that they deprive women of the autonomy to make choices about the most effective

Conclusion   273

ways to maintain their own safety and security and increase the risk that women who experience violence will be responded to as perpetrators. A question that runs through a number of chapters is; how can and should systems that operate on a scale and according to rules and regulations designed to address high volume crimes, such as IPV, be reformed to better understand and effectively respond to individual women’s circumstances, needs and preferences? IPV often involves physical violence but sometimes, and just as devastatingly, it may operate on the level of coercion and control. As Julia Tolmie’s chapter points out, the serious impacts of physical violence may be underestimated if it is seen simply as an ‘incident’ rather than an ongoing and interrelated pattern of violence and abuse. The criminal law is typically blind to patterns of abuse and poorly equipped to deal with IPV in ways that protect women from non-­physical violence. While calls for more law or changes to laws to address IPV are well intended, law as a ‘solution’ is fraught with risks, as the chapters focused on criminal justice responses acknowledge (see Walklate et al. 2017b). Conversely, however, while cautious as to their impact, some authors underline the symbolic value of specific laws to deal with IPV and the impact such laws may have on social attitudes. Thiago Pierobom de Avila’s chapter, for example, considers the Brazilian and Latin American trend to criminalise ‘femicide’ as a positive development, and one that contributes to addressing the broader social climate that normalises and condones crimes against women. This collection challenges us all to think outside of dichotomies. Here we have not only transgressed the public and the private, we have also taken as given the asymmetry of gendered violence(s) when viewed in a global perspective moving away from pre-­occupations with the local. We have also rendered these violence(s) as everyday, not exceptional; as ordinary, not about crisis; as patterned both in reality and in the virtual world, not as isolated incidents. Once treading on this path, such violence(s) become hypervisible, not invisible, and as much a product of bordered states in which the borderless and the non-­citizen is even more violated. Ultimately from this position the partisan concerns of domestic national interests informed by risk and security are made fully visible; as partial and exclusive not global and inclusive. Nonetheless, this collection offers no easy solutions to the risks to women’s lives and security posed by IPV. It raises a number of questions, dilemmas and tensions from a global perspective. While IPV is no longer seen as ‘just a domestic’ or as a private matter, the divisions between national security and the everyday insecurity of women as a result of IPV continues. While not pretending to present answers, it is hoped that the collection is one small step, following in the footsteps of feminists in earlier eras and across the globe, in changing the story about IPV.

274   Kate Fitz-Gibbon et al.

References Blagg, H. (2008) Crime, Aboriginality and the Decolonisation of Justice, Sydney: Hawkins Press. Cussen, T. and Bryant, W. (2015) Domestic/family homicide in Australia, Research in Practice no. 38, Australian Institute of Criminology. Dake, K. (1992) ‘Myths of nature: culture and the social construction of risk’, Journal of Social Issues, 48(4): 21–37. Hester, M. (2013) ‘Who does what to whom? Gender and domestic violence perpetrators in English police records’, European Journal of Criminology, 10(5): 623–37. Mooney, J. (2007) ‘Shadow values, shadow figures: real violence’, Critical Criminology, 15: 159–170. Walklate, S., McCulloch, J., Fitz-­Gibbon, K. and Maher, J. (2017a) ‘Criminology, gender and security in the Australian context: making women’s lives matter’, Theoretical Criminology, doi: 10.1177/1362480617719449. Walklate, S., Fitz-­Gibbon, K. and McCulloch, J. (2017b) ‘Is more law the answer? Seeking justice for victims of intimate partner violence through the reform of legal categories’, Criminology & Criminal Justice, doi: 10.1177/1748895817728561.

Index

Page numbers in bold denote tables, those in italics denote figures. 50 Shades of Grey 58 ‘Abduction of the Sabine Women’ (Poussin) 23 abjection, Kristeva’s theory of 121 Abrahams, N. 73 Abril, M.I. 148 abuse: as indicator of risk of IPH 4; as risk factor for IPV perpetration 75 abusive behaviour, non-physical 131 ad hoc international criminal tribunals 25, 28 Adecco Foundation 148 Adelman, M. 171 Africa, overall prevalence of IPV 74 alcohol consumption: media discourse around 76–78; and the relationship between HIV and IPV 75; and risk of GBV 76; by women who have been abused by a partner 74 Alegría, Claribel 110 Amnesty International 252, 260; role in the documenting of sexual violence 24 apartheid, legacies and challenges in South Africa 71–73 Arbach-Lucioni, K. 150 Argentina 184 Argueta, Manlio 110 Ariel, B. 62 arrest, deterrent effect 218, 234 Australia: body-worn camera use 61–62; court-based video-link technology 63; DVO application process 217; IPH statistics 4, 6; research and policy direction in response to family violence

126; risk from public terrorism 6; see also temporary migration and family violence Ávila, T.P. De 10, 273 Barber, B. 46 Bauman, Z. 90 Beijing Platform for Action 21 Belknap, J. 35 Belly, Giaconda 110 Bendlin, L. 44 Bennett, J. 73 body-worn camera evidence 61–63 body-worn cameras, and secondary trauma 63 Boesten, J. 20 Bolivia 184 Boonzaier, F. 9 Bosnia 21–27; government structure 22; UNSCR 1325 and 21–22 Bosnia and Herzegovina 19 Bosnian Federation 22 Bourgois, P. 91 Brazil 184; adoption of protocol for investigation of gender related killings of women 191; creates offence of ‘feminicide’ 3; criminalisation of femicide 181 (see also criminalisation of femicide); female killing rates 182; femicide prosecutions 190–191; Maria da Penha Law 194; reach of the crime of femicide 192 Brides March Against Domestic Violence 161 Brownmiller, S. 92 Burgess, J. 57 Buss, D. 25

276   Index Butler, J. 91, 111, 113 Cáceres Flores, Berta Isabel 109 Cahill, A. 99 Cahn, N. 30 Canada: evaluation of mandatory charging 236; implementation of mandatory charging policies 233; mandatory charging policies 233–247; police charging statistics 234; situating of torture in law 253–255 Castel, R. 151 catcalling 95 Cattaneo, L. 218 Cavezza, C. 58 CEDAW (United Nations Convention on the Elimination of all forms of Discrimination Against Women) 2–3, 145 Central America: representation of violence in cultural productions 110; see also Northern Triangle of Central America Chapman, A. 218 Chaudhuri, M. 217 children: childhood trauma as risk factor for IPV perpetration 75; exposure to domestic violence in Brazil 194; as hidden victims 200; IPV as recurrent factor in child protection notifications 3; protection role of DVOs 218; shaping of perceptions of coercive control and violence 58; threats to as postseparation abuse 220; used as leverage to control women 127, 132, 133, 133–137, 171; as victims of torture 258 Chile 184 China 93 Christofides, N. 75 Ciudad Juárez, Mexico: crime against humanity argument for the killings of women in 186; unexplained murders of women 118, 183 climate adaptation policies, typical aim 44 climate change 34–47; benefits of a human security approach 38, 45; climate justice and gender justice 44–47; ‘crisis’ framing 38; gender inequality and global warming 38–40; gendered conditioning of mitigation and adaptation policies 44; gendered perspective 34–38; human rights perspectives 45–46; mobility and gender 42–44; neoliberalism and global

warming 40–42; and the production of gendered insecurity 38–44; risk perception of politicians and corporate leaders 37; role of in urbanisation 42; state centric nature of discourse 38; towards a sustainable and non-violent future 47; urban impact 46 Clooney, George 97 Cobbe, F.P. 6, 252 coercive control: the concept 164; criminalisation in England and Wales 2; need for improved awareness among justice professionals 229; non-physical abusive behaviours 131; offence created in England and Wales 2; overlooking of by police 237; in popular culture 58; Stark’s equal recognition argument 131; tactics reported by New York Latinas 164–165; technology-facilitated violence as measure of 54; as torture 258 collective sex crimes 30 Colombia 184 Committee on the Elimination of Discrimination Against Women (CEDAW) 145–146 community protection, as sentencing consideration 204–205 conflict-related sexual violence (CRSV): documentation of 23–24; fetishisation 25; framing as national security issue 24; function of 24; historical perspective 23; IPV as greater security threat than 27; levels of global attention and condemnation 19; preferred measure of international response 28; systematic use in former Yugoslavia 24; see also securitisation of CRSV Conners, D.E. 11, 272 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UN) 253, 255, 264 Convention of Belém do Pará 185, 191 Coordinative Group of Women’s Organizations of Bosnia and Herzegovina, documentation of CRSV 24 Corry, J. 182 Costa Rica, criminalisation of femicide 184 costs of IPV, research on 3–4 Cotton Field case (Gonzalez and others vs Mexico) 181, 183–184, 194

Index   277 Crenshaw, K. 162 criminalisation of femicide 181–195; by 16 countries in Latin America 184; aims 190–191; criticisms 186–187; goals 192; impact 190–191; limited application to transgender women 187; media perspective 190; protocols for investigation and prosecution 191–194; reach of the crime in Brazil 192; rights of the victim and their family 194 criminalisation of IPV: as feminist victory 233; see also mandatory charging policies criminalisation of migration 43 criminalisation of private torture 251–266; Canada’s experience 260–265; literature review 255–257; Queensland’s example 257–259; situating torture in law 253–255 criminalisation of women, through the DVO system 230 criminology, gender and climate change focused research 39 cyberstalking 55; see also technologyfacilitated abuse Dake, K. 5, 270 Daly, K. 217 Dankelman, I. 40 data collection, UN recognition of benefits 3–4 Davidson, M.M. 95–96 Dayton Peace Agreement (DPA) 22 de Certeau, M. 53 deficiencies in resources see resource deficiencies dehumanisation 83, 88–90, 94, 102, 111, 115–116 DeKeseredy, W.S. 57 depictions of gender violence: Galindo’s performances 117–122; ‘The pain that lies within a handkerchief’ (Galindo) 117–118; ‘Sunday night’ (Ramos) 111–114; ‘We lose nothing in being born’ (Galindo) 118–122; works under analysis 111 Destroy the Joint, Australia 4 deterrents to reporting domestic violence 238–239 Detraz, N. 37, 45 digital media, impact on intimate relationships 54 (see also technologyfacilitated abuse)

disability, as risk factor for violence 4, 147 displacement, environmental disaster as driver of 42–43 Djoudi, H. 44 documenting of sexual violence, role of NGOs and the UN community 23–24 domestic abuse, as everyday terrorism 6 domestic violence, historical perspective 89 Dominican Republic 184 Douglas, H. 10, 63, 259, 272 Dragiewicz, M. 54, 57 Drover, P. 62 Dupont, I. 162 Durfee, A. 218 eating disorders 95, 97 Ecuador 184 Edwards, A. 256 El Salvador 184; increase in reported violence against women 116; murder rates of women 110 England and Wales: creates offence of coercive control 2; IPH statistics 4; police responses to IPV 3 entitlement, male sense of 73, 90–92 environmental disaster: association with slow intimate partner violence 43; as driver of mobility 42–43; gendered divisions of labour and vulnerability of women to 39; impact on levels of IPV 40; relationship with violence and conflict 35; resource deficiencies and the risk of harm to women 39 Erez, E. 171 ethnic minorities 10, 90, 143, 147–151, 157, 239, 271 Facebook 96 failure to report IPV, reasons for 148–149, 208, 236, 247 family violence, Brazilian experience 182 family violence in migrant communities see temporary migration and family violence Femicide Census, England 4 femicide/feminicide: attempted 193; Brazil creates offence of feminicide 3; classifications of femicides 185–186; defining 182, 184–185; direct vs indirect 185; feminicide vs femicide 183; Galindo’s re-enactment 117–122; genealogy of the term 182–184; goal of

278   Index femicide/feminicide continued the perpetrator 193; international data on the killing of women 181–182; limitations of the concept 184–186; media perspective on use of the term 190; place of in the recognition of gendered violence 188–190; rates of in the Northern Triangle of Central America 110; UN recognition of the terms 184; see also criminalisation of femicide femigenocide, proposal for use of the term 186 feminisation of vulnerability 39 feminism, criminalisation of IPV as feminist victory 233 feminist activists/activism, role in changing the story of IPV 2 feminist security studies, and gendered securitisation 20–21 Fergus, L. 58 50 Shades of Grey 58 Fisher, M. 20 Flood, M. 58 foot-binding 93 Ford, M. 172 former Yugoslavia: International Criminal Tribunal 24; and the securitisation of CRSV 21–22, 24; see also Bosnia; Republika Srpska Fragiskatos, Peter 260–262, 264–265 Fragoso, J.M. 185 Franco, J. 118 Fredrickson, B.L. 93, 95 Galindo, Regina José 111; re-enactment of femicide 117–122 Gallup-Black, A. 60 gang rape 91 Garcia, Agustin 161 Gelb, K. 208 gender inequality: as contributing factor to the killing of women 190; as driver of IPV 2; and global warming 38–40; IPV and 142; role of pink women issues 26 gender violence in Spain: and access to healthcare 146; benefits of an intersectional perspective 156–157; case examples of migrant/ethnic minority women 152–156; CEDAW report 145–146; instruments for risk and needs assessment 151–152; legal definition 144; legislation and practice in times of

austerity 143–147; monitoring system 142; number of murder victims 146; officially recorded female victims 143–144; overrepresentation among migrants and the disabled 147; paradox of hidden victimisation and overrepresentation 147–148; and psychiatric assessment 150; risk assessment 149–151; Special Courts 144 gender-based violence (GBV): alcohol consumption as a risk factor for 76; as extension of militarised state oppression 111–114; implications of academic discourse for framing and interpretation of 76; media treatment 76–82; racialised and classed constructions in media reporting 81–82; risk profile for perpetrators 80–82 gendered divisions of labour, and vulnerability of women to disaster 39 gendered insecurity: climate-induced migration 42–44; gendered relationship between IPV and global warming 38–44; neoliberalism and global warming 40–42 gendered securitisation, feminist security studies and 20–21 George, N. 36 Gervais, S.J. 95–96 Gill, R. 98, 100 global warming: and the concept of slow violence 36; contextual changes linked to 35; gender inequality and 38–40; gendered relationship between IPV and 38–44; IPCC assessment 34; neoliberalism and 40–42; role of socially constructed masculinity 39; and the role of women in farming 41; state-centric nature of security discourses 38; see also climate change Gonzalez and others vs Mexico (Cotton Field case) 181, 183–184, 194 Goodall, M. 62–63 Goodmark, L. 63 Gregory, C. 171 Grossman, J. 218 Guatemala 184; convictions in IPH cases 3; epidemic levels of violence against women 117; feminicide rates 110; Galindo’s re-enactment of femicide 117–122; Sepur Zarco case 3; violent culture against women 117 Gupta, J. 75

Index   279 Haglund, J. 28 Hall, G. 204 Hannah-Moffat, K. 236, 240 Hare, Robert 150 Harris, B. 8 Haynes, D.F. 30 health services/healthcare 60, 129, 146, 156, 169, 174 hegemonic masculinity 36, 90, 99 Henry, N. 23 Hernández, Claudia 111 Hirschauer, S. 29 HIV 73–75, 78, 80 homelessness, IPV as cause of 3 homicides, WHO designation of epidemic proportions 110 Honduras 184; feminicide rates 110; gender violence as extension of militarised state oppression 111–114; National Security Doctrine 112; treatment of female protesters 112–113 honour crimes 192 honour killing defences 10 Houge, A.B. 8, 271 human rights: counter terrorism measures and 7; recognition of IPV as human rights issue 2–3 Human Rights Watch, documentation of CRSV 24 Hunnicutt, G. 92 hyper-visibility, Buss’s concept 25 impunity of perpetrators: legislation to avoid 10, 181; prevalence in the Northern Triangle of Central America 110; results of a post-conflict climate 28; socio-cultural impact 184–185 Indigenous 1, 239, 251, 272 Indigenous women: casual treatment of men’s violence against 251; lack of trust in police 239 inequality: addressing of as essential component of climate change strategy 45; gender inequality see under gender; intersectionality and 126 Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belém do Pará) 185, 191 Inter-American Court of Human Rights (IACHR) 181 International Criminal Court (ICC) 28

international criminal law, expansion and enforcement 24 International Criminal Tribunal for the former Yugoslavia 24 international criminal tribunals 28 intersectionality: coining of the term 162; and inequality 126; and New York Latinas’ experiences of IPV 161–162 intimate partner homicide (IPH): Australian statistics 6; lack of global index 4, 6; statistics for England and Wales 4; tendency not to be counted 3 intimate partner violence (IPV): changing the story 2–3; the concept 1; contextualising the risk 5–7; counting the costs 3–4; economic impact 3; failure to take the risk of seriously 6; as form of private terrorism 6–7; as greater security threat than CRSV 27; historical perspective 2; impact of environmental disaster on levels of 40; patterns of harm implications 199–200; percentage of women affected worldwide 1; as a public health issue 73–75; relative invisibility 26–27; risk factors for perpetration of 75, 80–82; risks of engaging with the law 234–235; Spanish definition 144; technology as a tool to combat and regulate 61–62 intimate relationships, impact of digital media 54 (see also technology-facilitated abuse) invisibility of IPV 26–27 Iraq 6 Jaffe, P.G. 240 Jansen, W. 40 Jesch, J. 23 Jewkes, R. 74–75 Johnson, H. 11, 272 Johnson, J. 218 Johnson, K. 237 Johnson, M. 6 Jordan, J. 9, 270 Kaplan, E.A. 94 Keddie, A. 41 Kee, J.S.M. 59 Khosla, P. 46 killing of women: international data on 181–182; see also femicide/feminicide Kings-Ries, A. 57 Kirby, P. 30

280   Index Kothari, C. 217 Kristeva, J. 121 Landau, T.C. 236 Landscapes of Violence: Women Surviving Family Violence in Regional and Rural Victoria (George & Harris) 55–56, 60–61 Langton, R. 99 Latin America: culture of tolerance towards VAWG 181–182; model protocol for the investigation of genderrelated killings of women 191; use of the term ‘femicide’ 182–183 Latinas’ experiences of IPV in New York City 161–174; coercive control tactics reported 164–165; cultural and family perspective 166–168; deportation fears and feelings of personal and security 171–173; from an intersectionality perspective 161–162; and the judicial system 170–171; range of behaviours experienced 163–164; socio-economic context 168–169; stalking behaviours reported 165; study methodology 162–163 Lawrence, M.J. 72 Leaving Domestic Violence Study: ambivalence of participants 222–225; findings 222–228; methodology 219; participants 219–221; perceptions of helpfulness findings 222, 225–228 LGBTQI community 78, 126 liberty crime, IPV as 199 Logan, T. 218 López-Ossorioa, J.J. 151 Lozier, L. 9, 270 Luna, Y. 218 MacDonald, L. 257, 260–261, 265 MacGregor, S. 35 Machisa, M.T. 75 MacKinnon, C.A. 255 male peer-support theory 57 Malott, Margaret 251 mandatory charging policies 233–247; abused women’s perspectives 235–237; benefits 242; criticisms 234; as deterrent to calling police 247; drivers of introduction 246; feminist perspective 234–235; implications 246–247; negative consequences 244; perceptions of 240–246; police action 239–240; police

perspective 236–237; primary objectives 241; reporting decisions 238–239; risks of allowing police discretion 246; as standard of accountability 234; study data and methodology 237–238; study findings 238–246 Manjoo, R. 185 Mann, D. 62 Maria da Penha Law 181 marital rape 2, 72, 251; historical perspective 2; normalisation in abusive relationships 251; as private matter 72 Martinez-Roman, M.A. 148 Masaud, A. 46 masculinity: association of dominance and control with 73, 82, 90; hegemonic 36, 90, 99; impact of poverty on ideas about ‘successful masculinity’ 73; men’s violence as reassertion of 72, 92; patriarchy and 188–189; and the production of global warming 39; toxic 82 McCulloch, J. 37, 136 McEwan, T.E. 58 McGlynn, C. 256 Mckenna, R. 62 McLeman, R. 43 McRobbie, A. 98 media reporting, silencing of IPV in 78–79 media reporting of GBV: racialised and classed constructions in 81–82; reference to consumption of alcohol or drugs 76–82 Menchú, Rigoberta 110 Mendes, S.R. 187 men’s rights activists (MRAs) 96, 251 mental health: associations between IPV and 74–75; impact of IPV on women’s 3 Messing, J. 218 Mexico 118, 181, 183–184 Meyersfeld, B.C. 255 migration: criminalisation of 43; as risk factor for IPV 147; see also temporary migration and family violence Minaker, J.C. 235 mitigation/adaptation to climate change, gendered conditioning of policies 44 mobility and gender, climate-induced migration 42–44 Monahan, J. 152 Mooney, J. 10, 271 Mulvey, L. 94 Myhill, A. 237 Mythen, G. 37

Index   281 name-calling, as precursor to violence and abuse 90 narratives of gender violence see depictions of gender violence National Plan to Reduce Violence against Women and their Children 2010–2022 (Commonwealth of Australia 2011) 128 neoliberalism, and global warming 40–42 New Zealand, Sentencing Act 2002 201, 203–205, 207, 209–210 NGOs, role in documenting of sexual violence 23–24 Ní Aoláin, F. 29–30 Nicaragua 184 Nixon, R. 36 non-physical abusive behaviours 131 Northern Triangle of Central America 109–122; epidemic levels of violence against women 110, 116–117; production of cultural materials about gender violence 110 Not Now, Not Ever (Queensland) 61 Nussbaum, M.C. 94, 99 Obama, Barack 172 objectification 88–102; citizen surveillance and 96–99; in the context of IPV 90–93; in the context of terrorism 89–90; feminist backlash 98–99; and the ‘male gaze’ 94; male objectification 97; objectification theory 9, 88, 93, 93–95, 96; post-feminist debate 99–101; self-objectification 88, 95–99 Obokata, R. 43 Office of the High Representative (OHR) 22 online harassment 55; see also technologyfacilitated abuse Ortiz-Rodríguez, Y. 10, 271 Ortiz-Wallner, A. 115 Owens, C. 62 Pacific Islands 36, 195 Pain, R. 6, 88–89 ‘The pain that lies within a handkerchief’ (Galindo) 117–118 Panama 184 Pasinato, W. 185 past convictions, as sentencing consideration 207–208 patriarchy: as contributor to domestic violence 71–72; inclusion of all killings of women for gender reasons in a single

category may be effective as denunciation strategy 185; in online communities 57; relevance of the concept 174 patterns of harm: implications for IPV 199–200; overlooking of by police 237; as sentencing consideration 206–207, 207–212 Paxton, Dustin 260 Pearse, R. 39 personal security, role of protection orders 216–230 (see also protection orders) Peru 184, 190 Pickering, S. 4 Pierobom de Avila, T. 273 pink women issues 26 Piragoff, Don 262–264 police: proportion of time spent dealing with IPV-related calls in England and Wales 3; proportion of time spent responding to IPV 3; risks of allowing discretion in IPV cases 246 police responses to IPV: New York Latinas’ experiences 170–171; and the risk of deportation 173 political violence, gendered forms of 111–114 politics of mobility, climate-induced migration 42–44 pornography: access to and the normalisation of abuse 58–59; physical and verbal aggression in 100–101; relationship with real-world violence against women 101; violence in 59 post-conflict sexual violence, intersection of securitisation of CRSV with 19–30 post-traumatic stress disorder (PTSD) 74–75 Poussin, Nicolas 23 poverty: climate change and 36; as contributor to social invisibility of Latinas in the US 163; impact on ‘successful masculinity’ 73; role of environmental degradation 40 precarity, Butler’s concept of the differential distribution of 111, 114 pregnancy: and access to healthcare 146; impact of a combination of IPV and HIV 73–74; risk factors for experiencing IPV during 74 presumptive arrest/charging see mandatory charging policies prevalence of IPH, Australia 4, 6

282   Index prevalence of IPV: Africa 74; in Spain 142 private terrorism 6 proportionality, as sentencing consideration 205–206 protection of women, cross-cultural perspective 21 protection orders (DVOs): effectiveness 217–219; goals of IPV survivors seeking DVOs 218; as power shift 230; purpose 229; as sentencing consideration 210; women’s experiences 219–228 (see also Leaving Domestic Violence Study) psychological abuse 96, 131, 153, 185 psychological torture, defining 252 PTSD (post-traumatic stress disorder) 74–75 public health issue, IPV as 73–75 Quiñones, A. 181, 190 racialising of GBV in South Africa 80–82 Ramos, Maria Eugenia 111 rape: historical perspective 23; as metaphor for barbarism of war 23; perception of women’s vulnerability to during wartime 118; recognising as torture 255–256; see also marital rape Rape of Nanking 23 Raymond, L. 46 refugees 42, 126–130, 135, 137, 149, 237 reporting of domestic violence, reasons for not reporting 238–239 reproductive labour 39, 43, 45 Republika Srpska 19, 22, 26 resource deficiencies: climate change and 36; natural disaster and the risk of harm to women 39 resources: gendered resource inequality 40; resource ‘extractivism’ 41; see also resource deficiencies Ricart, Gladys 161 Richards, D.L. 28 Richlin, A. 23 Ríos, M.L. 184, 187, 193 risk: challenging 71–83; ideological effects of knowledge production on GBV 76–82; vulnerability and 76–80 risk assessment: consequences of global warming and 37; for gender violence in Spain 149–151; instruments used in Spain 151–152; place of in IPV responses 5

risk factors, for perpetration of IPV 75, 80–82 Roberts, T. 93, 95 Roman Empire 23 Royal Commission into Family Violence (Victoria) 61 rural locations, and levels of violence 59–60 Russell, D.E.H. 182, 184 Russia 2 Rwanda 21, 23–24, 254 Salter, M. 53 Sarajevo Open Centre 22 Sarson, J. 257, 260–261, 265 Saunders, D.G. 93 Schwartz, M.D. 57–58 securitisation of CRSV 19–30; Bosnia’s relevance 22; comparison with IPV 26–27; criminalisation 28–29; difficulty with the agency approach 21; feminist and gendered perspective 20–21; hypervisibility 23–26; intersection with postconflict sexual violence 19–30; sexual violence as rupture and continuum 29–30; triggers for the process 21; UNSCR 1325 and Bosnia 21–22 securitisation process, modes of recognition 19 security of women, improving 7–11 Segato, R.L. 115, 186 Segrave, M. 9, 271–272 self-blame 101 sentencing considerations for victim safety: burden of proof 209–210; case examples 209–210, 211; common law limitations 205–207; fairness 211; legislation and victim safety 204–205; past convictions 207–208; patterns of harm 206–207, 207–212; rationales for punishment 203–204; reform options 211–212 Sepur Zarco case, Guatemala 3 sexual harassment 95, 113, 184, 189 sexual violence, conflict-related see conflict-related sexual violence (CRSV) shame, and its consequences 23 Sheehy, E.A. 11 Shefer, T. 76 Sherman, L.W. 218 Sinclair, Deborah 260 Sjoberg, L. 29 Skeem, J.L. 152

Index   283 Skjelsbæk, I. 8, 271 The sky cries a lot (Galindo) 117 slow intimate partner violence (SIPV): associated dynamics 38; the concept of slow violence 36; as impact of men’s migration in the wake of environmental disaster 43; resource inequality as form of 40; and suggestions for reduction of global warming and 44–47 Smith, S. 20 social media 55–56, 96, 100, 237 social media surveillance 54; see also technology-facilitated abuse Sokoloff, N.J. 162 South Africa: apartheid legacies and challenges 71–73; challenging risk 71–83; determinants of violence against women and children 74; establishment of Family and Marriage Association 72; IPV as a public health issue 73–75; media treatment of gender based violence 76–80; patriarchal structure 71–72; pregnant women exposed to IPV 74; risk profile for perpetrators of GBV 80–82 Southern Criminology 53 spaceless violence: defining 54–55; experiences of 55–56; justice administration 61–64; normalisation of 57–59; perpetrator networks 56–57 Spain: prevalence of IPV 142; see also gender violence in Spain Squire, V. 42 stalking 96, 101, 165, 193–194, 199, 224; see also technology-facilitated abuse Stanko, E. 62 Stark, E. 62, 91, 126, 130–131, 164, 199, 230 Stein, J. 218 substance abuse, relationship with IPV perpetration 75 ‘Sunday night’ (Ramos) 111–114 Sweden 1 technology: and citizen surveillance 96–99; as tool to combat and regulate IPV 61–62 technology-facilitated abuse 52–64; criminal justice agents’ perceptions 60–61; defining spaceless violence 54–55; depiction in popular culture 58; examples of 55–57, 60–61; experiences of spaceless violence 55–56;

normalisation of spaceless violence 57–59; and patriarchal online communities 57; in rural areas 59–60; spaceless justice administration 61–64; spaceless perpetrator networks 56–57; spatial framework 53; see also stalking temporary migration and family violence 126–138; Australian policy commitments 128; the borders of women’s security 137–138; children and transnational threats of retaliation 133–137; deportation fears and feelings of personal and security 171–173; intersection of migration and family violence 127–138; intersectionality and coercive control 130–132; the meaning of temporariness 128–130; role of visa status 128, 129, 136; study methodology 132–133 territorial possessions, treatment of women’s bodies as 115–116 terrorism: global vs everyday 89; locations of deaths from 6; objectification in the context of 89–90; private 6; public vs private 6–7; technology and citizen surveillance 96–99 tolerance, Latin American culture of towards VAWG 181–182 Tolmie, J. 10 torture: defining 251–252, 253, 257; purpose of 255; recasting men’s violence against women as 251–253; sentences for 258–259; see also criminalisation of private torture Trump, Donald 172 Twilight 58 UN World Conference on Women (1995) 21 underreporting of domestic violence, reasons for 238–239 UNICEF 74 United Kingdom, body-worn camera use 62–63 United Nations: recognition of the terms femicide and feminicide 184; role in documenting of sexual violence 23–24; Security Council Resolution 1325 see UNSCR 1325 United Nations Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) 2–3, 145

284   Index United States (US): body-worn camera use 62; DVO application process 217; evaluation of mandatory charging 236; Immigration and Customs Enforcement Agency (ICE) 172; implementation of mandatory charging policies 233; Latinas’ experiences of IPV in New York City 161–174 UNSCR 1325: adoption 22, 28; driving force 24; protection orientation in follow-up resolutions 22; women’s agency orientation 21 urbanisation, of the global population 42 Valero-Garcés, C. 148 Varona, G. 10, 271 Vasconcellos, F.B. 187 Vaughan, C. 127 Venezuela 184 Veronis, L. 43 victim, impact of being referenced as 240 victim-blaming: as a consequence of proportionality principle 206–207; examples of 259; in media reporting 77; Northern Triangle of Central America 109–110; as reason for institutional failures 183; role of mandatory charging policies in countering 233, 234, 241–242; South Africa 76–77; ‘why doesn’t she just leave?’ 40 victim/survivor debate 174n5 Vigarello, G. 23 Viking Age, Jesch’s study 23 Vikings, treatment of women 23 violence against women and girls (VAWG): benefits of data collection 4; examples of antifemale terror 184; failure of nation-states to stem 37; global costs in $USD 3; Latin American culture of tolerance 181–182; link between climate change/global warming and 34–38; prevalence in post-conflict

societies 30; as result of post-conflict climate of impunity 28; typically reactive response 7 ‘Visual pleasure and narrative cinema’ (Mulvey) 94 vulnerability, feminisation of 39 Walker: Megan 265; R. 218 Walklate, S. 37 ‘war on women’ 185 ‘We lose nothing in being born’ (Galindo) 118–122 Weber, L. 4 Websdale, N. 60 ‘why doesn’t she just leave?’ 40 ‘Wife Torture in England’ (Cobbe) 6 Wilson, D. 37 Windsor, L. 45 Wolf, Naomi 97 women: in armed conflict 21; control over as measure of male success 73; percentage affected by IPV worldwide 1; perception of as an object of domination vulnerable to rape perpetrated during wartime 118 Women’s Coalition against Family Violence 3 women’s magazines, preoccupation with appearance-related issues 97 women’s rights, impact of IPV on 2–3 women’s security, improving 7–11 women’s shelters, establishment of 2 Wonders, N.A. 8, 272 Wood, J.T. 92 Woodlock, D. 58 World Health Organization (WHO), global statistics for IPV 35 World Medical Association (WMA) 251–252 Wright, Laurie 263, 265 Yugoslavia see former Yugoslavia