Feminist Advocates and Scholars Discuss Challenging Criminalization
On February 18, 2021, panelists Aya Gruber, Mirta Moragas, and Estefanía Vela Barba discussed their efforts to contest the role of criminal law in feminist advocacy in the U.S., Paraguay, and Mexico, respectively. The event, titled “Challenging Criminalization in Feminist Advocacy: Perspectives from the Americas,” was moderated by Professor Alice Miller, an Associate Professor (adjunct) of Law at Yale Law School and the Co-Director of the Global Health Justice Partnership. The panelists reflected on the harms of criminalization that they have observed in their work and the potential for transnational solidarity among feminists skeptical of criminalization.
Gruber — a law professor at the University of Colorado and an expert on criminal law, legal feminism, violence against women, and critical theory — shared her perspective as a scholar in the United States context. Drawing from her debut book, The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration, Gruber described the personal and historical origins of her research. While she was in law school, Gruber recalled facing what she described as the “feminist defense attorney” dilemma. She struggled to reconcile her desire to represent marginalized individuals against “the very powerful carceral state” with her “feminist sensibilities,” which had led her to believe that the “primary remedy” for gender and domestic violence was “punishment.”
As a public defender in Washington, D.C., however, she found that criminally prosecuting domestic violence did little to help many survivors, who were mostly women, and often made their situations worse. Prosecution resulted in many people of color becoming “saddled with criminal convictions” that just caused more harm. For undocumented survivors of domestic violence, for example, criminal prosecution “made their partners and even themselves deportable,” Gruber explained. According to Gruber, under pro-arrest programs for domestic violence, victimized women themselves faced arrest for domestic violence, and they were arrested for crimes related to their own abuse and vulnerability, such as child neglect or sex work. “Prosecution was never the answer,” Gruber argued.
Gruber probed how feminism “became one of the last legitimators of penalty in criminal law,” questioning her instinct early on in her career to see gender crime as the “root of patriarchal oppression that needed to be taken down one man at a time.” She aimed to unpack the “canonical account of feminism,” by examining history, which turned out to undermine the contemporary “instinct that...equates gender justice and criminal law.” She pointed out that, in contrast to mainstream narratives about feminist history, anti-rape and anti-domestic violence laws were not under-enforced; rather, they were “selectively enforced depending on the race, class, and status” of the parties involved. “The decades-long lynching epidemic in the South was enabled by anti-rape laws,” Gruber said.
The focus on criminal law in feminist advocacy, Gruber added, ignores not only history but also impact. She cited the Milwaukee Domestic Violence Experiment, a 1989 study on recidivism rates that found that arresting unemployed Black men for domestic violence charges made them more likely to recidivate––effectively bolstering the argument for policies other than arrest. “Prominent activists and scholars of the time argued against the study,” Gruber said, asserting that their objections were based on a faith that the “absence of criminal law was in and of itself a violation of women’s rights...and criminal prosecution, regardless of the results, was part of gender justice.”
Paraguayan lawyer, feminist activist, and human rights advocate Mirta Moragas followed Gruber’s presentation, explaining that her activism in Paraguay was “in line with” Gruber’s research in the U.S. Moragas works with Feminist Neighbors for Sexual Justice and Reproductive Justice in Latin America and the transnational coalition RESURJ (Realizing Sexual and Reproductive Justice). She coordinates the campaign “Injusta Justicia” (Unjust Justice), which aims to start a conversation about the efficacy of criminalization as a feminist strategy to protect sexual rights, reproductive rights, and adolescent autonomy. Moragas spoke about the “unintended or unwanted protectionist laws” in her region, including age-of-consent laws, that create barriers for adolescents in accessing public services and that allow parents and guardians to exercise control over their adolescents’ sexual lives.
She described how her thinking around criminalization began to evolve in 2015, when she developed a distrust for the Paraguayan criminal justice system’s ability to affect change; “it does not consider the impact on survivors,” Moragas said. The system offers “punitive measures,” she argued, “instead of proposing a more comprehensive set of measures.” In the case of adolescents, Moragas emphasized, “criminal law creates unwanted and unexpected consequences” that limit their autonomy in cases where the parents or guardians use criminalization to make couples, especially LGBTQ ones, separate against their will.
She described how her organization frequently partners with others, such as panelist Estefanía Vela Barba’s Intersecta, to compile cases that demonstrate that there are “big limitations” of criminal law “when we have many violations of sexual and reproductive rights.” By only focusing on criminalizing femicide, Moragas believes advocates are forgoing holding the government accountable. Her organization’s campaign, she said, has tried to “bring these experiences from different countries and contexts into conversation” — an effort she believes to be “central to feminist strategies.”
Following Moragas’ presentation, Estefanía Vela Barba expressed excitement about the opportunity to speak across regional perspectives; to Vela Barba, challenging criminalization often feels like “very lonely work.” Executive Director of Intersecta, a feminist research and advocacy organization committed to ending gender discrimination in Mexico, Vela Barba emphasized that the conversation about challenging criminalization in Latin America is “nascent” relative to that which has been taking place in the U.S.
“In the name of women’s rights, we’ve seen an expansion of the carceral state and criminal law,” Vela Barba said. “Every issue of feminism gets turned into a crime.” Vela Barba explained how sexual harassment and the failure to pay spousal or child support became crimes rather than a “civil fault or labor infringement.” Criminalization has been embraced to such an extent, Vela Barba said, that there are “more states criminalizing obstetric violence than those that have decriminalized abortion.” The Intersecta director also noted how the current narrative around impunity in Mexico fuels “reforms that don’t actually work for something,” resulting only in “bigger sentences” rather than real change.
Implementing new criminal laws has also caused unintended consequences, according to Vela Barba. For example, women have been criminally convicted under the femicide law that Mexican feminists fought to implement. Vela Barba pointed out that femicide was “originally theorized as violence that men commit against women,” but women in Mexico are now being convicted for family violence and femicide “at a disproportionate rate” to men.
Vela Barba attributed the rise in criminalization in Mexico to former President Felipe Calderón’s “war on drugs,” in which he mobilized the military in an “unprecedented” manner to counteract narcotrafficking and other crimes. Since then, the expansion of the military’s budget and power, according to Vela Barba, has “provoked more violence,” rather than reducing it as intended.
Vela Barba ended by repeating a question that anti-carceral feminists often face: “If it’s not criminal law, then what?” Criminalization simplifies reality, using the same system to address everything from failure to pay spousal support to femicide, Vela Barba explained. “It gets complex” to imagine a truly effective way to respond to gender violence and other harms, said Vela Barba, without the simplifying force of criminalization. “We don’t have answers” to the ‘then what’ question, expressed Vela Barba. “That’s the labor.”
