Silvana Tapia Tapia
Assistant Professor, Universidad del Azuay
Leverhulme Early Career Fellow, University of Birmingham
In my recent article, Beyond Carceral Expansion: Survivors’ Experiences of Using Specialised Courts for Violence Against Women in Ecuador, published in Social and Legal Studies, I addressed the limits of the specialised penal system created in Ecuador — as in many other Latin American countries — to respond to women’s reports of domestic violence. The article demonstrates that very few complaints reach the sentencing stage, as most women “abandon” the trial after obtaining a restraining order against their aggressor. Frequently, this is due to fear that advancing the process will worsen their situation. However, the restraining order is invalidated due to lack of legal grounds when the criminal trial fails to progress, thus leaving women unprotected.
When complainants were asked about their motivations to report violence, most alluded to their need for protection and social services, rather than a will to obtain carceral punishment for the defendant. Such patterns challenge the assumption that women pursue imprisonment as a goal when they report violence, and suggest that the penal apparatus is not responding adequately to their material needs for protection, redress, and services, while revictimising them and side-lining their lived realities in favour of a formalistic and adversarial approach to justice.
Evidence like this, which has been corroborated by other feminist researchers, invites us to defy the dominant approach to violence against women (VAW), which equates criminal investigation, prosecution, and punishment to comprehensive justice. I have discussed elsewhere this rights-based penal approach, which I also historicise in a forthcoming monograph. Rights-based penality[1], I have argued, largely results from the influence that international human rights’ have on domestic legislations. Human rights systems promote an anti-impunity and “zero tolerance” discourse that is globally invoked by lawmakers and governing agencies to tackle VAW (Engle, 2016; Lavrysen & Mavronicola, 2020; Tapia Tapia, 2018).
In the United Kingdom (UK), the requirements to mobilise coercive and carceral tools to fight VAW, found in the Istanbul Convention, the Council of Europe Convention on Action against Trafficking in Human Beings, and the European Court of Human Rights (ECtHR) case law, have “cascaded” (Sikkink, 2011) into national laws, such as the Modern Slavery Act 2015, and the Domestic Abuse Bill 2020. Similarly, in Ecuador, the Organization of American States, the Inter-American Commission on Human Rights, and the Inter-American Court of Human Rights (IACtHR) have strongly influenced domestic penal responses to VAW since the 1990s. In 2013, specialised criminal courts were established, in 2014, the new Penal Code criminalised several forms of VAW, and in 2018, the Comprehensive Law to Prevent and Eradicate VAW, further affirmed the fight against impunity. In this way, the UK and Ecuador exemplify the synergy between international human rights systems and domestic criminal law in the Global North and South.
As we see, human rights have played a role in disseminating today’s carceral “common sense” and conflating penality with justice. Indeed, some critical literature has pointed out that progressive political actors, including via feminist, environmentalist and LGBTIQ agendas, have been demanding harsher punishments for those who violate human rights (Bernstein, 2010; Halley, 2008; Moyn, 2016; Pérez & Radi, 2020; Tulkens, 2011). This conflation can narrow down our understanding of access to justice and displace potential non-penal responses that may be more reparatory for survivors. At the same time, human rights and constitutional law are used to justify the resort to criminal justice, through the argument that due process and other guarantees formally ensure a fair trial, thus masking the penal apparatus as unproblematic (Tapia Tapia, 2018).
The contradictions inherent to this “human rights penality” have been discussed within multiple fields, including socio-legal studies, feminist and critical criminology, decolonial theories, and philosophical interrogations of human rights as a universal language to channel all social and political demands (Golder, 2014; Kapur, 2018; Moyn, 2016; Rivera Cusicanqui, 2014; Snider, 1998). Penal expansion, in turn, has been associated with the decline of the welfare state and the harshening of neoliberal governance in late capitalism, which has resulted in an enhanced surveillance of individuals and groups who are already marginalised due to gender, race, and class discrimination (Gilmore, 2007; Simon, 2007; Sudbury, 2005; Wacquant, 2014).
As I write, Ecuador is confronting its worst carceral crisis in history: since 2019, violent deaths in prisons have escalated from 32 victims in that year, to 53 in 2020, and a staggering 243 in 2021 (Kaleidos, 2021). These massacres were largely the result of violent confrontations between inmates, overcrowding, poor hygiene conditions, lack of recreational spaces and programmes, restrictions on family visits, and the prolonged absence of a state that has little control to mitigate the damage and prevent future riots.
These scenarios urge us to rethink our approach to human rights violations. We are ethically and politically accountable if we turn a blind eye to the material reality of violence survivors who remain unprotected, and to carceral sanctions that are in practice a death sentence. Still, scholars have not systematically explored how coercive approaches to justice can be resisted without neglecting the fight against state violence and social inequality.
I think it is crucial to include the grounded experiences of decolonial and anticareral feminists across the globe. In the UK, advocacy groups such as Bent Bars and Empty Cages have denounced the punitive turn in law and policy, and are pursuing various forms of contestation and resistance. In Ecuador, decolonial scholars and activists have come together in collectives like Alianza Contra las Prisiones, Corredores Migratorios and Mujeres de Frente, which stress the correlation between race, class, and gender discrimination, and are producing novel critiques of carcerality, racism, xenophobia, and gender-based violence.
Importantly, their approaches pay attention to the colonial history of destitution suffered by the most marginalised sectors of society, which make up the majority of the prison population. These collectives also emphasise the urgency of social redistribution, insisting on the systemic nature of the inequalities that produce violence, crime, and carcerality. Academic research should thus translate these experiences into new theory and/or practicable HR frameworks to address VAW.
With that backdrop, I am exploring the European and Inter-American human rights systems, particularly in the domain of VAW, to confront human rights penality with the work of decolonial, feminist, and anti-carceral activists and scholars. Concretely, through empirical participatory action-research and critical discourse analysis, I will pursue a feminist abolitionist framework that can address VAW and also be an expression of decolonial resistance. I anticipate that such framing can be developed through a bottom-up socio-legal methodology that will invite activists, collectives, and critical scholars to come together and exchange their experiences in opposing carcerality and VAW, while grappling with the pros and cons of resorting to human rights.
Prior to starting this fieldwork, I am conducting qualitative content analysis of European and Inter-American human rights conventions and case law, to identify how penality is discursively construed as an optimal response to VAW. I will also highlight the non-penal approaches to VAW that have been developed in recent European and Inter-American case-law, involving economic redistribution and access to employment, health, and education. In addition, I am interested in foregrounding and radicalising the non-penal and anti-carceral elements found in human rights instruments such as the Tokyo and Bangkok rules on alternatives to imprisonment.
Thus far, I have traced a process of deep juridification (Blichner & Molander, 2007) in the European and Inter-American conventions and case-law on VAW, with a tendency to expand penality and to posit criminal investigation, prosecution and punishment, as synonyms of comprehensive justice for violence survivors. The main mechanisms through which human rights are juridified are: the introduction of law-making and law reform as central solutions to gender-based violence, the framing of access to a criminal trial as synonymous with access to protection and remedies, and the prioritisation of abstract legal rules and principles over women’s material experiences of interacting with the penal apparatus. Some case-law even describes criminal judgements as reparations per se.
I see this penal juridification as a process by which legal coloniality produces a narrow, abstract, and individualistic understanding of justice that displaces the embodied experiences of the people involved in a conflict. This model obscures the racialised brutality of the penal apparatus, and contributes to presenting criminal prosecution as indispensable for democracy and freedom, and compliant with human rights. In parallel, the harsh “side effects” of penality upon human bodies, including those of violence survivors, are concealed. Furthermore, human rights discourse is progressively less preoccupied with social, economic, redistributive, restorative, and transformative justice.
If we understand the penal apparatus as a colonial and patriarchal institution that has been presented as sophisticated, rational and benign by liberal legalism, and legitimised by human rights, and if penality is founded on an epistemicide that disallows other possible conceptions of justice, then feminist penal abolitionism is an avenue to pursue in order to decolonise human rights.
[1] With other authors in the foucaultian tradition, I use penality to refer to the whole of the penal apparatus, which includes criminal law, criminal policy, justice administration, the penitentiary
Read more by this author
A Decolonial Feminist Critique of Penality. (29 March 2021) Critical Legal Thinking blog.
Feminism and penal expansion: the role of rights-based criminal law in post-neoliberal Ecuador. (2018) 26(3) Feminist Legal Studies 285–306.
Sumak Kawsay, coloniality and the criminalisation of violence against women in Ecuador. (2016) 17(2) Feminist Theory 141–156.
About the author
Silvana Tapia Tapia is Doctor of Philosophy in Socio-Legal Studies (University of Kent). She also holds a Master’s in Criminal Law and a Bachelor’s in Law (Universidad del Azuay). Currently she is Assistant Professor of Law at Universidad del Azuay. From 2022, she is a Leverhulme Early Career Fellow, hosted by the University of Birmingham to conduct a comparative study of the penal approach that the European and the Inter-American human rights systems utilize to counteract violence against women.
References
Bernstein, E. (2010). Militarized humanitarianism meets carceral feminism: the politics of sex, rights, and freedom in contemporary antitrafficking campaigns. Signs, 36(1), 45–72.
Blichner, L. C., & Molander, A. (2007). Mapping juridification. European Law Journal, 14(1), 36–54.
Engle, K. (2016). A genealogy of the criminal turn in human rights. In K. Engle, Z. Miller, & D. M. Davis (Eds.), Anti-impunity and the human rights agenda (pp. 15–67). Cambridge University Press Cambridge.
Gilmore, R. W. (2007). Golden gulag. Prisons, surplus, crisis, and opposition in globalizing California. University of California Press.
Golder, B. (2014). Beyond redemption? Problematising the critique of human rights in contemporary international legal thought. London Review of International Law, 2(1), 77–114.
Halley, J. (2008). Rape at Rome: Feminist interventions in the criminalization of sex-related violence in positive international criminal law. Michigan Journal of International Law, 30, 1–123.
Kaleidos. (2021). Diagnóstico del Sistema Penitenciario del Ecuador. UDLA. https://www.ethnodata.org/es-es/diagnostico-de-sistema-de-penitenciario-del-ecuador/
Kapur, R. (2018). Gender, Alterity and Human Rights: Freedom in a Fishbowl. Edward Elgar Publishing Ltd.
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Tapia Tapia, S. (2018). Feminism and penal expansion: the role of rights-based criminal law in post-neoliberal Ecuador. Feminist Legal Studies, 26(3), 285–306.
Tulkens, F. (2011). The Paradoxical Relationship between Criminal Law and Human Rights. Journal of International Criminal Justice, 9(3), 577–595.
Wacquant, L. (2014). Class, race and hyperincarceration in revanchist America. Socialism and Democracy, 28(3), 35–56.
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