Scholarship in a Violent Time

Nov 11, 2013 Robert LeckeyAdd a Comment

Robert Leckey

Alexander Kondakov’s paper on the claims framed by gay and lesbian activists in Russia and the effects of official silence is brave and thought-provoking.

It is a fine example of socio-legal research, combining discourse analysis of sources gathered from empirical research with theoretical insights. Amongst other sources, Kondakov draws on Wendy Brown’s work on tolerance and Brenda Cossman’s study of how refusing legal recognition to same-sex marriage nevertheless inaugurates it into “speakability.” Methodologically, his discussion of the “sub-discourse under the articulated one” as part of the normative order, “shaping things that are supposed to be left unsaid,” might appropriately inspire other legal researchers, as much scholarship confines itself to that which is said.

The paper begins with an overview of the historical treatment of same-sex activities in Russia over several centuries, referring to a number of Russian-language sources. Kondakov sums up that “[w]hen homosexuality was decriminalized, it continued to be pathologized.” Kondakov then focuses on two discursive flows regarding homosexuality in Russia. One is proposed by the state in laws and policies. He addresses the state’s “discourse of silence,” delineating the treatment of homosexuality as unspeakable in official legal and medical texts.

The other concerns the advocacy strategies of Russian gay-rights organizations, and the paper’s heart is found here. Kondakov undertakes a discourse analysis of fifteen LGBT organizations’ online statements and survey responses by their heads about rights and claims for rights. To summarize a nuanced analysis crudely, the majority of those groups prioritize a rhetoric of tolerance, while a minority advance a rhetoric of equality in claiming rights. In turn, the tolerance rhetoric correlates with deference towards the authorities and a preference for civil partnerships as a means of relationship recognition. The equality rhetoric lines up with a resistant attitude towards the authorities and claims for same-sex marriage.

Kondakov plainly prefers the equality rhetoric over that of tolerance, saying of the “tolerance bargain” that it “forces lesbians and gay men in Russia to exist in the lacunas of silence and to get rid of the sexualized features of homosexuality.” Who needs LGBT activism “to make us invisible,” he asks, when the authorities successfully do that? At the same time, the strategy of equality challenges silencing and “provokes conservative political response or recognition.” The upshot is that what is said when the silence is broken “does not necessarily contribute to the recognition of LGBTs as empowered citizens.”

With the horrific images from YouTube videos of gay bashings in our mind, and the response from outside Russia, that statement appears to be a painful understatement. Indeed, this paper is both timely and already slightly dated. It provides valuable historical context and insight into the views of activists on the ground in Russia. Paying attention to such views is crucial, given the risks that heavy-handed condemnations of Russian homophobia may only intensify the will to differentiate that country from the West.

The paper is out of date insofar as when Kondakov finalized it, it was only regional governments that had adopted provisions stipulating fines for the “propagation” of homosexuality. In June 2013, the Duma adopted a federal law banning gay propaganda. To be sure, the paper’s ambition is not to report on the latest developments in Russia. Given that the paper’s historical survey begins in medieval times, a few months’ further changes are trivial. Still, the recent federal law alters the relevant dynamics in that Kondakov contrasted Russia’s acknowledgement of European human rights norms “at the level of the Criminal Code and state law” with “forms of backlash” at the local or regional level.

At a time when some are calling for Russia’s LGBT community to get dangerous, Kondakov’s paper may inspire reflection on legal scholarship’s place and value in a time of crisis. His careful scholarly attention to the dynamics of speech and silence on gay rights in Russia is itself a courageous act of resistance.

Copies of Foucault and Butler may provide little defense to a physical attack. Still, at a moment of fear and temptation to despair, the insights that Kondakov draws from them in the Russian context may provide grounds for hope, however frail. Continuing his paper’s central theme of silence and resistance, he closes by noting that the laws banning homosexual propaganda themselves speak aloud of homosexuality and “open up a public discussion on homosexuality in Russia to negotiate its status.” Moreover, the laws “employ a rich diversity of phrases to speak about homosexuality in law,” including neologisms. The discourse is not monolithic, then, but “unstable and diverse,” hinting at “room for negotiation.”

I don’t know if Kondakov would write the same thing in the prevailing conditions. I certainly hope so.

Help in Deconstructing the Zimmerman Acquittal: The Suspicion Heuristic

Oct 14, 2013 Camille NelsonAdd a Comment

Camille Nelson

I like the article Self-Defense and the Suspicion Heuristic; consistent with Jotwell’s tagline, I like it lots. The timing of this short review is apt. The Zimmerman verdict was recently rendered. It is still fresh in our minds, protests are taking place across the United States, President Obama has delivered a landmark speech on race in America, reflecting that, “Trayvon Martin could have been me . . . .” Self-Defense and the Suspicion Heuristic is an important work that lends insight into thought processes that could have led both to the killing of Travyon Martin and the verdict of acquittal.

This Iowa Law Review article, authored by a law professor (Richardson) and social psychologist (Goff), explores the subtle “mental processes [that] can conspire to produce racially discriminatory behaviors.” (P. 295.) In attempting to disabuse the reader of the assumption that Mr. Zimmerman must have been a bigot or a racist, meaning a conscious discriminator, Richardson and Goff elucidate predictable and pervasive unconscious racialized psychological processes that “warp the perceptions of even the most egalitarian of individuals.” (P. 295.) They call for “a new legal and theoretical framework that can account for these biases—one that does not rely upon the fiction of the objective decision-maker or the scapegoat of the consciously biased actor.” (P. 295.) Tapping the mind sciences to illuminate unconscious psychological processing that “can lead to systematic errors in judgment about criminality,” the authors introduce “the suspicion heuristic.” They employ this heuristic, which is defined as a “mental shortcut that often leads to systemic errors in determining who is and is not suspicious” (P. 297) to interrogate reasonableness determinations in self-defense doctrine.

The suspicion heuristic seeks to explain how even the perception of race, without animus, can “bias judgments of criminality.” (P. 296.) Providing an overview of the relevant mind sciences, Richardson and Goff explore the study of heuristics (“the human tendency to use decision-making shortcuts”) (P. 297) and biases, then implicit bias, which has been found to disadvantage marginalized groups, including women, people of color, and those individuals with lower socio-economic status. (P. 297.)

The authors start with the reality that, “given the social construction of crime as racially Black, people are more likely to both consciously and non-consciously associate Blacks with criminality.” (P. 312.) In doing so, they reject ways of thinking that are “mired in antiquated lay theories of human nature,” (P. 312) in favor of the suspicion heuristic which they posit as more “consistent with four decades of research into how humans think.” (P. 312.)

The authors reference numerous studies and mind-science research on point, including research indicating that police officers are not immune from biased thought-processes. For instance, they cite a study which concludes that “an officer’s implicit association of Blacks with apes was a significant predictor of [the] overestimation [of the age of a black child],” (P. 306) which in turn is assumed to lead to harsher treatment. In acknowledging this implicit dehumanization, however, the authors do not connect this to the long history of scientific racism, for instance that perpetrated under the pseudo-science of phrenology and craniology, which operated to privilege whiteness whilst simultaneously dehumanizing people of color.

Importantly, the authors describe how the heuristic recognizes that “Blacks serve as our mental prototype (i.e. stereotype) for the violent street criminal. Furthermore, the tendency for black suspects to be over-represented in media portrayals of violent street crime makes the Black-as-criminal stereotype readily available.” (P. 310.) The consequences of such racialized unconscious analysis are serious, “if the person being judged is non-White, individuals are more likely to make a mistaken judgment of criminality.” (P. 311.) In analyzing the way the doctrine of self-defense deals with the question of perceived threats, the authors link legal doctrine and research from the mind sciences to explain the ways in which an individual may rely upon racialized heuristics and be informed by implicit racial associations. “The suspicion heuristic thus explains how mere knowledge of ubiquitous criminal stereotypes can cause pernicious errors in judgment and perception, regardless of whether the individuals involved believe or subscribe to the stereotype.” (P. 314.) This conclusion validates and brings insight to the ongoing conversation around the killing of Trayon Martin, as well as concerns with the verdict acquitting George Zimmerman. Furthermore, the authors state, “people are more likely to recall evidence of Black criminality than instances when that stereotype was false.” (P. 312.)

What the article does not explain, perhaps a worthy prequel, is just how and why those “ubiquitous criminal stereotypes“ came to be, such that they could be activated even in the absence of conscious and deliberate thoughts. That is, why, given “dwindling racial bigotry” (P. 312) does non-conscious bias against people of color, Black people in particular, persist, and where did it begin? The authors indicate that people have racialized go-to’s; that is, automatic, non-conscious, unintentional, and disparately racialized ways of thinking. These heuristics interact with our implicit biases to produce disparate outcomes for some people, Black people being their main focus. This begs the question: Why do we have the particular racial short-cuts that we do in the first place?

That said, this is an important and timely article. It provides an easily understandable primer on the law of self-defense, its history, development, classification, and utilization. (Pp. 314-318, 321-334.) This depth of analysis, combined with a solid description of the duty to retreat, and the stand-your-ground laws would delight law students engaged in criminal law exam preparations. (Pp. 326-332.) It also demonstrates the ways in which the uber–powerful legal notion of reasonableness is impacted by the suspicion heuristic, thereby having broad doctrinal appeal. (Pp. 318-320.) However, I think the greatest strength of the article is in providing a way to understand discrimination—and racism in particular—in the absence of intentionality. American jurisprudence addressing discrimination and bias remains fixated upon the intent standard, thereby excluding the contemporary manifestations of unintentional, implicit, and covert discrimination. The lack of a nomenclature about unintentional discrimination has diminished legal analysis (see for instance, Charles Lawrence III’s pioneering 1987 Stanford Law Review article, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism), which still expects and sanctions only explicit and more obvious forms of discrimination. This article should help us in this respect; it has provided both the empirical evidence to unmask, and a language to elaborate upon, the fiction of exclusively intentional forms of discrimination.

Challenging Inequality in Credit Markets—Towards a Reconstituted Financial Subject

Sep 11, 2013 Toni WilliamsAdd a Comment

Toni Williams

Race, Gender, Power, and the US Subprime Mortgage and Foreclosure Crisis: A Meso Analysis, by Gary Dymski, Jesus Hernandez, and Lisa Mohanty, is a reminder of the power that mainstream economic analysis wields to shape social understandings of inequalities in personal credit markets and the terms on which potential legal and regulatory solutions are debated. At the same time, the article exposes the inadequacy of mainstream economic analysis when dealing with important questions about financial subjects and their exploitation in subprime lending markets.

The authors ask: what is it about the circumstances of minority women and men that renders these financial subjects too risky for lenders to trust with the relatively safe and affordable credit supplied by mainstream personal finance markets and at the same time the sub-prime market’s preferred borrowers of risky, dangerous, and unaffordable loans? They ask also: why did the well-documented over-supply of credit at the turn of the 21st century fail to exert competitive downward pressure on the predatory pricing of the subprime mortgages marketed to minority households, particularly minority female-headed households? It perhaps seems odd that such crucial questions about the performance of subprime markets have received little attention in conventional economic accounts of the crisis. But, as noted in the article, their absence reflects economic analysis’s robust assumptions that markets are socially neutral institutions populated by financial subjects that are abstracted from relations of racialization, class, and gender. The centering of this ahistorical, pre-political disembodied financial subject within economic analysis then perpetuates the invisibility of systemic racialized and gendered inequalities in the law reform and policy debates that economics influences.

The article contests this model of the disembodied financial subject. It draws on data about gendered and racialized inequalities in U.S. housing and housing finance markets that have been generated since the passage of the Fair Housing Act, the Equal Credit Opportunity Act, and the Home Mortgage Disclosure Act in the 1970s. To answer their questions the authors compare conventional micro-level economic analysis of the exclusion of minority populations from access to standard mortgage loans with a meso-level analysis of institutions and practices associated with the hyper-inclusion of minority and female borrowers in the subprime mortgage economy.

This comparison illustrates the differences that explanatory frames can make to understandings of problems and debates about solutions. Both micro and meso analyses may find that unequal treatment persists in credit markets essentially because it is profitable to suppliers of loans. But the micro analysis is based on an imperfect information model that also rationalizes unequal treatment. Factors correlated with race, gender, and socio-economic disadvantage (such as precarious income, asset-holdings and care responsibilities) are constructed as external to the credit market and legitimate information for suppliers to integrate into their business models and their processes for assessing loan applicants.

By contrast, the meso analysis seeks critically to explain how markets, along with other institutions, contribute to the production and perpetuation of racialized and gendered inequality. This type of economic analysis focuses on “mediating institutions and instruments,” (P.11, quoting Elson) rather than information. It traces connections between the restructuring of financial firms following the early 1980s neoliberalization of their regulation, an explosive growth of fringe banking facilities—often owned or funded by global banking firms—in minority and low-income communities, and the shift from intermediation to securitization as the production technology of mortgage finance. Financial subjects are racialized, gendered, and situated by reference to location and income. Evidence of unequal treatment by lenders is integral to the analysis.

The authors find answers to their questions in the layering of institutional and strategic changes in the banking business on top of the legacy of the US’s reliance on markets and legal instruments to create gendered and racialized social spaces, differentiated by wealth. Their data indicate that subprime lenders targeted minority communities in an era of stagnant or declining incomes and rising house prices (particularly the incomes of minority women) to extract equity and deepen debt among the already indebted. So, “there was no simple shift from exclusion to inclusion,” (P.14) and “subprime lending was never the rosy alternative path to homeownership that [it was] made out to be.” (P.16). Competition failed to reduce the prices of subprime loans in minority communities because the appearance of competition among a multiplicity of brokers hustling for business is belied by the reality that the flow of finance to households was regulated by “a small number of megabanks [acting] on behalf of return-seeking investors.” (P.20). Racial segregation, “the legacy of a race-making process … in urban housing markets,” (P.21) increased the structural market power of lenders “provid[ing] them with more opportunities to leverage short-term gains in communities of color.” (P.21).

This article is an interesting read. Its positioning of systemic racial, gender, locational, and income inequalities as integral to analysis of sub-prime lending offers a valuable corrective to mainstream economic analyses that portray consumer finance markets as socially neutral institutions for allocating credit and distributing risk. The meso economic analysis also complements the work of critical race theorists and progressive credit law scholars who have studied the exploitation of African American, Hispanic, female-headed, and other low-income households in credit markets. As such, Race, Gender, Power, and the US Subprime Mortgage and Foreclosure Crisis: A Meso Analysis provides a stimulating contribution to the trans-disciplinary project of displacing the disembodied financial subject.

The Global Problem of Women’s Equality

Jul 26, 2013 Ruthann RobsonAdd a Comment

Ruthann Robson

That we are still strategizing how to achieve gender equality—the equality of women’s constitutional and legal status, social and economic opportunities, and daily realities with those of men’s—is the perplexing truth at the heart of Penelope Andrews’ important book, From Cape Town to Kabul. Known for her work on South Africa and legal feminism, Andrews here posits questions about how gender equality can be achieved on a global scale. She offers no easy answers or totalizing theories, but proposes a notion of “conditional interdependence” as a method of situating women within their various cultures as a way to move forward with the project of equality. It’s a concept that could go far in resolving some of the thorniest arguments about “choice” and “autonomy” that permeate questions of women’s equality.

At its most hopeful, Andrews’ book presents the struggle for equality in South Africa as it was mounted against the Apartheid state, resulting in a new constitutional regime devoted to transformative law and politics. Andrews attributes the fact that this transformation included gender equality to a confluence of forces, but most importantly women’s participation. She suggests that the path chosen by South Africa is a model for many other nations, stressing that the involvement of women at all levels and phases is vital.

Nevertheless, the path towards the goal of eliminating sexism is more labyrinthian than straightforward. In part, this is because the definition of what constitutes “sexism” is itself unsettled. Among the Constitutional Court’s decisions she discusses, Bhe & Others v. The Magistrate, Khayelitsha, decided in 1996 under the Interim Constitution, provides an apt illustration. In Bhe, male inmates challenged the constitutionality of an executive order by then-President Nelson Mandela pardoning all “mothers” in prison who had children under the age of 12. The Constitutional Court ultimately upheld Mandela’s order, rejecting the kind of reflexive formal equality so prevalent in United States constitutional equal protection doctrine. Instead, the Court acknowledged that Mandela’s order did discriminate on the basis of gender, but that this discrimination was outweighed because the order would assist mothers—and more importantly, children—in the real, rather than idealized, world. Yet the dissent argued such assistance would perpetuate gender stereotypes.

Differences in strategies for eradicating gender discrimination in South Africa, however, are not the major source of Andrews’ critique. Instead, she focuses on more entrenched obstacles. She is certainly not the first to note that specific guarantees in constitutions, even when they track the most progressive human rights documents, are not sufficient to change lived experiences. But she argues that in South Africa, “the eradication of apartheid and racism, while immensely challenging and still ongoing, has been popular and not as onerous as eradicating the numerous forms of discrimination against women.” (P. 100). She attributes this to three overlapping sources, including the masculinist culture emanating from the previous authoritarian and militaristic apartheid state; the masculinist cultural remnants of a violent anti-apartheid struggle; and aspects of indigenous customary law that continue to subordinate women. It would have been interesting in this regard to devote even more attention than she does to South Africa’s evolved stance on sexual orientation equality, including a constitutional textual guarantee and a powerful doctrinal jurisprudence. Nevertheless, given the obstacles she names, it seems rather miraculous that South Africa’s commitment to gender equality is as robust as it is.

An even greater miracle would be necessary for Afghanistan to achieve even a semblance of such equality. Andrews accepts the notion of “gender apartheid” as an apt description of Afghanistan, even as the constitution contains more than a few explicit references to women’s rights. Unquestionably, the lived reality of women—across class and ethnicities—is brutal. Andrews argues that these women can maneuver to create a focus on gender equality similar to that achieved by women in South Africa during the transition to constitutional democracy. The key, Andrews believes, is making clear that national needs are intertwined and interdependent with women’s needs and rights. Men, she contends, need to stand with women. Such a possibility may seem exceedingly slight for Afghanistan, but of course it also once seemed inconceivable in South Africa.

Although Andrews’ polestars are Kabul and Cape Town, she is exceedingly mindful of the lives of rural women throughout the respective nations. Further, her examination of two nations is situated within the global struggle for women’s equality, including the international human rights context. She values culture without valorizing it, subjecting the gendered practices of developed nations (e.g., cosmetic surgery) to incisive scrutiny as part of her comparative analysis.

From Cape Town to Kabul is a book for wherever you may be—whether first world or third world or, as is true so often, straddling the usual borders—because that’s where the gender equality project is incomplete.

Law As Unfinished Social Action

Jun 24, 2013 Sonia LawrenceAdd a Comment

Sonia Lawrence

After reading Presumed Incompetent: The Intersections of Race and Class for Women in Academia¹ and attending the Symposium organized around the book by the Berkeley Journal of Gender, Law and Justice, I came home to find Sara Ahmed’s On Being Included: Racism and Diversity in Institutional Life waiting in my mailbox (this Jot is about On Being Included, although I’m quite prepared to say that I like Presumed Incompetent (lots) as well). The combination of these two books, both filled with personal stories and institutional insight, cracked my vision of my own place in the legal academy, and the “practice” of diversity, wide open. I read this work as a person who shares a (not surprising, really) number of experiences-as-academic with Ahmed. I read it just after reading the often deeply personal essays in Presumed Incompetent. I also read it as a person who has worked to avoid being noticed as “the problem” while trying to maintain a commitment to anti-racist work. These days, that means deep concern that my own strategies and efforts are nothing more than thinly veneered cooptation. All of these things, I think, amplified the impact of the book on me. But I still do not hesitate to recommend it to you, Jotwell reader.

On Being Included is a different kind of offering from a well-known Black British feminist, Professor in Race and Cultural Studies at Goldsmiths (University of London), whose work draws on feminist theory, queer theory, critical race theory and post colonialism. She writes, “It develops my earlier arguments about ‘stranger making’ by thinking more concretely about institutional spaces…” (P. 3.) The book is a study of “diversity” as work inside institutions of higher education. Unlike most of her other work, this one developed out of an empirical study she undertook with a team (read the Introduction for the description of how this happened). Ahmed’s interviews, her personal connection to the subject matter (her presence is part of how her institution does diversity (P. 153), and she has done ‘diversity work” there as well), and her linking of empirical and theoretical insights make this a deeply engaging read.

The theoretical underpinning of this work is a mix of sociology (mainly in terms of methods) and philosophy. Although not the author’s focus, law is embedded in the work. The need for diversity is often driven by regulation, whether found in state laws or rules and regulations binding the institution, whether external or internal. In the UK, at least, many of the interviewees hold positions created after the Race Relations (Amendment) Act 2000 created a positive duty “to promote equality of opportunity and good relations between persons of different racial groups” which applied to a wide variety of public bodies, including “institutions within the further education sector”. “[I]n effect,” writes Ahmed, “[diversity] practitioners in the public sector in the UK have been writing documents to comply with the law.” (P. 8.) Law is what lies behind the production of the documents that Chapters 3 and 4 are focused on. Ahmed notes the “language of compliance” in that the documents written to comply with the law often refer to those laws in their opening paragraphs. (P. 86.) The law, she argues, is “an occasion of action.” (P. 88.) And what is that action? Ahmed suggests that the requirement of having a document created another duty—to “find the writer.” (P. 88.) The identity of the writer of the institutional document will matter in terms of how the document is received and acted upon, as Ahmed discusses in Chapters 1 and 3. And yet all of this “compliance” is taking place inside an institutional culture which is often focused on anything but law, which has cultural norms and established practices, where whiteness is often overwhelming, and “diversity workers” are needed for even quite superficial challenges to these traditions.

The book offers two important things, going beyond a critique of diversity as being something altogether different from anti-racism. First, it considers diversity not by asking what diversity might look like, or whether it has been achieved, but as both the product of work, and as doing work itself. What is “doing diversity” doing? Using interviews with a group of “diversity workers” (in Britain and Australia) and a variety of textual sources, Ahmed develops a picture of what the work is, and how it is done. Working with Butler’s performativity, she develops a notion of “non-performatives,” where “the failure of the speech act to do what it says is not a failure of intent or even circumstance, but is actually what the speech act is doing.” (P. 117.) For those who are working in the area of equality law, the book also offers a different lens on (our own) calls for legal reform in ways which require “diversity,” or demands that legal institutions, such as the judiciary, be “diverse.” As we think more about diversity not just as a contestable outcome, but as a daily work process engaged in by human actors within existing institutional structures, we might understand the likely outcomes of our work differently. I am not claiming that this understanding will lead to a complete revisioning of goals—even Ahmed leaves some space for optimism that diversity imperatives can be leveraged into ways to force people past the “brick wall” and to “the table” where conversations about what “diversity” conceals can finally happen.

Secondly, the book is focused on diversity work in institutions of higher learning (albeit mainly in the UK context, where the pace of change seems particularly blistering at the moment). There may be a particular benefit for academics and students in thinking about how “diversity” is operationalised inside institutions with which we are so familiar. What does it mean when job advertisements say, for instance:

Osgoode Hall Law School is committed to equality and diversity. The Law School has an Employment Equity Plan, which aims to ensure that our faculty is reflective of the four designated societal groups identified in the federal Employment Equity Act: women, visible minorities, Aboriginal persons, and persons with disabilities. The Law School welcomes applications from members of these groups and encourages candidates to self-identify in their initial applications (e.g. in cover letters).

Does this mean Osgoode Hall is doing diversity? Does it also mean the institution is male, white, settler, and able-bodied? What boxes are ticked by this? Is it anti-racist? Reading this book might offer a way of engaging and trying to understand institutional practices (and, perhaps, strategies) in “our own” institutions. I was particularly intrigued by Ahmed’s engagement with “performance culture” in Chapter 3. While Ahmed believes that “the development of state mechanisms for ensuring the accountability of public institutions can have progressive as well as disciplinary ends”, she wants to consider what happens when “equality becomes a performance indicator.” (P. 85.)

It might be ironic, given Ahmed’s previous work, that I found the book enjoyable to read. Her conclusions are not particularly optimistic in terms of the possibility that “diversity” will produce forms of equality which are meaningful. Diversity work, says Ahmed, tends to obscure exclusion, race and racism. It creates a discourse and a practice which can prevent the development of institutional habits of diversity. And, in fact, Ahmed argues, these effects, these non-effects, are the ones that much diversity work is designed to do. Yet Ahmed also suggests that the very “hollowness” of the term may allow possibilities for those diversity workers (not all of them) who are trying to use the space created for diversity work to force difficult conversations on unwilling institutions. Read this work to reflect on how “in legislating for equality (and against inequality) it can be assumed that equality is achieved in the act…it is as if having a policy becomes a substitute for action…which can work to conceal the inequalities that make the law necessary in the first place.” (P. 11.)

1. Presumed Incompetent: The Intersections of Race and Class for Women in Academia (Gabriella Gutiérrez y Muhs, Yolanda Flores Niemann, Carmen G. González, & Angela P. Harris, eds., Utah State University Press, 2012).

Provoked Intimate Femicides: A Privatized Version of “Honour”?

May 22, 2013 Isabel GrantAdd a Comment

Isabel Grant

In their thought-provoking work Dishonour, Provocation and Culture: Through the Beholder’s Eye?, Pascale Fournier, Pascal McDougall and Anna R. Dekker use a unique blend of historical, cross-cultural and empirical analysis to reveal the connections between so-called “honour killings” and intimate femicides where the defence of provocation is invoked.  While “honour killings” typically involve “non-Western” defendants, and concerns about gender equality are more explicit, intimate femicides raise similar equality concerns which are often unrecognized and concealed.  The authors acknowledge that there are differences between our typical conception of honour killings and the spousal homicides in which provocation is raised by Western defendants.  For example, traditional honour killings invoke the idea of public honour, whereas in the provoked intimate femicides, “the locus of honour has shifted from the traditional extended family to the individual man” (178). However, there are underlying features that link spousal homicides to honour killings: both are “cultural claims tied to male domination of the family” (180) and both turn on the desire to control women’s sexuality. In essence, the defence of provocation is portrayed as a privatization of honour, with aspects of honour manifested through Western understandings of “passion”.

The defence of provocation in Canada has not been explicitly linked to male honour in the case law.  Instead, the defence is viewed as making concessions to human frailty, and is limited by the concept of the “ordinary person”.  The insult which triggers the killing must be grave enough to cause the ordinary person to lose self-control, and the accused must have reacted suddenly, before there was time for his “passions to cool”.  But this concession to human frailty masks the historical basis of the defence and the meaning embedded in spousal homicide cases. The idea of women and children as property of their male partners looms large even in recent cases.² The public framing of honour killings as something “other” than Western obscures the foundations of spousal femicides in Canada, which are rooted in individual conceptions of male honour.

In the empirical section of the paper, the authors analyze recent cases involving honour crimes and spousal femicides in Canada.  Their results demonstrate a significantly higher success rate for the defence of provocation for those defendants identifiable as Western than for those from non-Western cultures.  The authors caution readers about drawing too much from their limited sample. However, it is important to consider whether these cases reflect a failure to recognize the underlying misogynist basis for Western cases involving provocation, while in cases involving accuseds from other countries with “foreign” conceptions of honour, we are able to see the misogyny for what it is.  Rosemary Cairns Way has previously made this argument³) that the honour cases fail to acknowledge the assumptions about male entitlement to women that pervade Canadian culture.  While cases involving immigrant accused often rely on expert evidence to explain the cultural basis for the accused’s actions, non-immigrant accused succeed on the provocation defence without any such evidence because the values about gender inequality reflected in the cases are deeply embedded in Canadian culture.

In R v Tran⁴, the Supreme Court of Canada held that the ordinary person standard in the provocation test must be  informed by values of equality, such that the ordinary person cannot be held to be imbued with qualities contrary to the values reflected in section 15 of the Charter.  This has generated optimism in those concerned about the scope of the provocation defence in Canada: many feel that Tran will limit the applicability of the defence both in cases dealing with intimate femicides and in cases dealing with “homosexual panic”.  In the latter cases, which arguably construe homophobia as ordinary, accused men have had their liability reduced after killing a man who may have made a sexual advance.⁵  However, Fournier et al. caution against too much optimism following Tran.  We should not assume that importing Canadian values into the provocation defence will necessarily solve the issue of honour-based killings.  In other words, we must unpack what Canadian values reflect about male dominance and the use of violence to assert control over women.  As the authors conclude, “however right the harsh punishment of honour crimes may be, this has the potential to conceal Western femicidal behaviour, an unintended consequence we should be wary of” ( 188).  While the horror of honour killings is explicitly acknowledged, “the equally horrifying practices which our “ordinary person” seems to accommodate” must also be scrutinized (189).

I would argue that if a commitment to equality is to be taken seriously, we must move beyond simply accepting that “ordinary” people kill in response to rage and jealousy.  Rather, we must ask why these emotions are privileged over some other “human frailties” that might be more deserving of our compassion.  Abolishing the defence of provocation outright is more difficult as long as we have mandatory minimum sentences for murder.  Courts understandably look to defences like provocation to mitigate the harshness of those mandatory minimums in cases where they appear excessive.  However, it is important to scrutinize closely why we feel mitigation is appropriate in some contexts and to ensure that gender inequality (and inequality based on sexual orientation) are not underlying the claims for mitigation.  This carefully crafted article makes a significant contribution to this endeavour in the context of gender and reminds those of us hopeful about the impact of Tran not to be complacent about the Canadian values that will be incorporated into the objective test.

1. See, e.g., R v Thibert ([1996] 1 SCR 37), where the defence of provocation was allowed when a man killed his estranged spouse’s new partner; the “insult” was the refusal of his spouse to talk to him in private and the victim standing his ground when faced with a loaded gun
2. Culture, Religion and the Ordinary Person: An Essay on R. v. Humaid, 41 Ottawa L. Rev. 1 (2010
3. 2010 SCC 58
4. See, e.g., the recent case of R v Ouimet, unreported, summarized in Mary Ganes Welsh, Ex-Soldier Jailed in Gay Killing, Winnipeg Free Press, June 8, 2012, http://www.winnipegfreepress.com/local/ex-soldier-jailed-in-gay-killing-158045545.html.

Forsaking Vulnerable Sex Work

Apr 17, 2013 Elaine CraigAdd a Comment

Elaine Craig

Most of us never have to be concerned about being forsaken.  We have permanent homes, we have family doctors, we have jobs… But imagine you have none of these things.  You don’t know where you are going to sleep tonight.  You do not have access to regular health care.  You have no employer…You are consumed by fears about your physical safety.  You are afraid to contact the police.  In these circumstances, you are largely on your own, easily forsaken.⁶

It is difficult to imagine a more intentional account of vulnerability than the above passage introducing British Columbia’s recently released Report of the Missing Women Commission of Inquiry into the disappearance and murder of more than sixty Vancouver women – most of whom had been involved in the city’s Downtown Eastside sex trade.  It is also difficult to imagine an opening sentence that more explicitly constitutes a “vulnerable other” subject position.

What does it mean to be a vulnerable person and what are the political and legal implications of framing a particular subject position as vulnerable? These are the central questions posed by the contributors to a recent special volume of Feminist Legal Studies – Sex Work and The Regulation of Vulnerability(ies). The aim of this collection is to examine how discourses of women’s sexual vulnerability are invoked in order to advance specific political agendas.  The volume as a whole engages thoughtfully with existing work attempting to theorize human vulnerability.  One theme recurrent throughout a number of the pieces is the lack of critical examination in much of the previous vulnerability scholarship on the ways in which legal and political actors have deployed the concept in service of agendas that ultimately result in a differential distribution of life’s precarity.

Anna Carline’s piece, Of Frames, Cons and Affects: Constructing and Responding to Prostitution and Trafficking for Sexual Exploitation, was of particular interest to me.  Carline’s contribution interrogates the invocation of the vulnerable subject as a justification for state intervention with respect to sex work.  She draws upon Judith Butler’s recent work theorizing life’s precarity in order to examine the race, class, and gender based differences in the distribution of vulnerability perpetuated by the Policing and Crime Act 2009 in England and Wales.  Carline uses Butler’s framework to highlight how official discourses surrounding the adoption of this legislation framed the State as concerned with recognizing and protecting the vulnerable sex worker.  This is a strategy that, according to Carline, ultimately resulted in reforms reflective of a law-and-order/morality approach to the sale of sex rather than a victim-centered approach.

Borrowing from Butler’s assertion that the framing of issues is itself an operation of power that guides the interpretation of facts in ways that produce particular affective responses and political outcomes, Carline argues that “the vulnerability of those engaged in prostitution …was framed by official discourses in a manner that avoided the complexities of their ‘life-worlds.’” (P. 209.)  She suggests this was done deliberately, in an effort to support increased criminalization and stricter immigration policies – an outcome that belies the official state discourse of care for the vulnerable other.  Carline demonstrates how the New Labour Government relied on the notion of vulnerability to justify revisions to sex work laws in England and Wales that are conservative, class based, racist, and antithetical to policies aimed at resolving the increased precarity (due to factors such as unequal distribution of wealth) faced by those involved in prostitution.

Carline’s piece is useful for its clear illustration of the discursive operation of power during the lawmaking process, and its call to develop an ethical responsibility to recognize and address the social, economic, and political factors that heighten the vulnerability of those constructed as “others.”  But her contribution offers more.  It, along with other contributions to this collection, offers a cautionary tale about uncritical reliance on concepts of vulnerability.  Carline accepts as a starting position that there is a relationship between the occurrence of prostitution and poverty and other untenable conditions of life.  Her interrogation of state reliance on the concept of vulnerability is not a rejection of the reality of vulnerability for some sex workers.  Indeed, she accepts and relies upon the broader proposition (endorsed also by Butler) that we are all fundamentally vulnerable but that certain lives have been constructed as grievable and in need of protection while others have been forsaken.  Carline’s piece is a call to approach the concept of vulnerability cautiously and critically, while remaining attuned to the ethical responsibility to improve the “social, political and economic networks of support which are essential to supporting and maintaining life.” (P. 208) She raises issues that should be of great concern to academics, law reformers and sex worker advocates in jurisdictions, like Canada, where governments have responded to constitutional challenges to the laws criminalizing the exchange of sex for money with arguments about their interest in protecting vulnerable women.

1. “Foresaken”: Report of the Missing Women Commission of Inquiry, British Columbia Ministry of Justice, November 19, 2012.

Sexuality and Legal Consciousness

Mar 25, 2013 Margaret DaviesAdd a Comment

Margaret Davies

Legal consciousness studies is an area of socio-legal research that looks empirically at the narratives of law constructed in people’s everyday lives. It challenges the distinction often made between law and society by illustrating their mutually constitutive relationship. Put simply, not only does law affect individual and collective lives and the nature of social groupings, but social patterns and narratives also constitute the law. Influential work by Patricia Ewick and Susan Silbey made the point emphatically that “legal consciousness” is not only about people’s subjective experiences of law, but also about how people live the law, how they interpret, use, and resist law, and how they embed those meanings in their practical everyday settings.

In Regulating Sexuality, Rosie Harding takes the concept of legal consciousness in two new directions. First, she integrates it with legal pluralism, and in particular the critical legal pluralism which also defines legality by reference to everyday meaning-making and practice. Secondly, she undertakes an extensive empirical analysis of the legal consciousness of lesbians and gay men, an analysis that is important in its own terms, but that also contributes to the theoretical understanding of the effects of power on legal consciousness and how resistance by marginalised groups contributes to the legal meaning-making they engage in. Both elements of Harding’s work are significant, not only for legal consciousness studies but also for legal theory, for understanding the legal agency and conditions of lesbian and gay lives, and also for providing additional grounding to the alternative conceptions of legality which underpin legal pluralism.

In relation to the first point – the connection between legal consciousness and legal pluralism – Harding argues that legal consciousness studies has an implicit openness to the alternative understandings of “law” and “legality” which pluralism offers. This openness is under-developed in legal consciousness theory, sometimes leading to an over-emphasis on state law or a reversion to the assumption that law is essentially state law. If, as Ewick and Silbey argued, legal consciousness refers not only to what people know or understand about law, but also how they themselves make the law in their own lives, then law can never simply be state law but must open out onto different beliefs and alternative normative patterns. Nonetheless, a more restrictive view of consciousness has sometimes emphasised subjective understandings of state law, obscuring the complexity of normative environments and in particular the ways in which power and social marginalisation are written into consciousness of law. As Harding says:

…a plural approach to legal consciousness studies can help to address some of the limitations of previous legal consciousness research. By explicitly recognising that the ‘legal’ part of legal consciousness can include structural or normative pressures, as well as ‘official’ law, a plural legal consciousness framework has the potential to be more sensitive to the position of marginalised individuals in society (32).

Bringing pluralism and consciousness of law together allows for a much more expansive definition of legality and a more nuanced analysis of everyday narratives of law. Engagement with and resistance to the formal law is refracted through a variety of normative lenses other than the state law itself.

The empirical dimension of Harding’s book is equally significant and produces an amazingly rich picture of the complexities of lesbian and gay engagements with law, including the myriad forms of resistance and the diversity of positions which form lesbian and gay legal identities. Four very distinct empirical/textual sources are engaged in the analysis – a large online survey, published narratives about lesbian and gay parenting, semi-structured interviews about general regulation of sexuality, and utopian fiction. As Harding comments, only one of these, the semi-structured interviews, fall into the normal methodological parameters of legal consciousness studies, but the other three add texture and dimensionality to the exercise of unpacking legal narratives around sexuality regulation. This may appear far-fetched in the case of utopian fiction, which has little to do with “real” law but this chapter of the book casts a reflexive light on the possible and imaginable of thinking about sexuality and its regulation, and in this sense is entirely relevant to our present “everyday” contexts. It is illustrative of consciousness, not in the direct way that interviewing a participant might be, but because it taps into a cultural consciousness about alternative normativities – whether these are to do with genuine formal equality or a more substantial and thoroughgoing reimagining of sexual identities.

Different readers will undoubtedly find different things in Harding’s book. I responded in particular to its theoretical sophistication, and the way it draws together different strands of theory in a logical and very thought-provoking way. The empirical and textual investigations, which illustrate the themes of power and resistance in extraordinary detail, are also very compelling. The book offers a thorough and fresh analysis of the regulation of sexuality and is not only an important contribution to sexuality studies but also to the theoretical paradigms which it draws upon and develops.

Political Splits

Feb 12, 2013 Davina CooperAdd a Comment

Davina Cooper

Erik Swyngedouw’s exploration of the spacing of politics is embedded within a trajectory of work in political theory (and political philosophy) that asserts the specificity and distinctiveness of the political in the face of left politics’ conventional emphasis on the economy and domination. At the heart of this body of work is post-foundationalism – a philosophical project that recognizes the significance and necessity of ongoing moves to ground political and social order, while simultaneously refusing the notion of a pre-existing, non-contingent base or essence, whether derived from human nature, democracy, rights, justice, or the people.

Working within this framework, Swyngedouw’s article opens with a challenge: how to understand the coexistence and relationship between insurrectional political activism and violent discontent, on the one hand; and post-democratic, technocratic, consensus-based politics, on the other. Swyngedouw seeks to explore this tension through three moves: through the character of the post-political; the politics/political distinction in post-foundational thought; and the question of egalitarian political space.

The post-political suggests privatization, marketization, the power of business lobbies, and the erosion of democratic rights. It suggests a form of doing politics based on the public management of consensus, where democracy is split from equality, and instead of being embedded in an agonistic encounter is aligned with consumer choice in public market conditions. Post-democratic consensus and technocratic administrative logics, however, do not fully efface the political; as tendencies they remain incomplete. To explore the continuing presence of “the political,” Swyngedouw considers its relationship to politics – a distinction and relationship extensively debated within continental political thought. While the political signifies the absent foundation (as an open, dislocating force), politics identifies the actions, strategies, and assemblages of public sphere governing; in other words, it identifies everyday practical kinds of politics, or what Rancière describes as “police.” Through these institutionalized routines and modes of representation, people, things, and activities get placed and allocated. Always precarious, contingent, and unable to completely suture the social field, the everyday of post-democratic politics (and its imagined community) colonizes the space of the political. Yet, all is not lost. For, as Swyngedouw and others argue, there will always be an outside – a radically different way of rendering life intelligible that challenges the prevailing institutionalized common sense. Here, the political returns as “a retro-actively revealed moment of eruption.”

Adopting Rancière’s conceptual framework, an emancipatory politics can be understood as the refusal to be restricted to places allocated within the “police” order. Staging equality in order to make visible the wrong of a given situation, as in Rosa Parks’s decision to sit in the “wrong” seat, the non-egalitarian practices of a racialized order are disclosed.  In the process, classifications and institutionalized distinctions are disrupted.

Swyngedouw suggests democratic political spaces are active moments in constructing new egalitarian spatialities inside and through existing geographies of the police order. These active moments go beyond demands for inclusion that work to sustain a post-political consensus; they go beyond rituals of resistance which leave the police order intact; and they go beyond acts of violence that generate and legitimate, in turn, the reciprocating violence of the state. “Proper politics,” Swyngedouw suggests, involves practices that challenge the symbolic order of the police; it involves designing space as an egalitarian and libertarian field of disagreement, opening up room for other speech acts; and it involves radically re-organizing what can be heard, seen and known. At the same time, politics may take shape as refusal: “I’d prefer not to” — a strategy Swyngedouw argues that is also an invitation to think again, and to form new egalitarian imaginaries. Fundamentally, Swyngedouw argues we need to rethink equality politically – not as a sociological concept which demands policy responses to inequality but as a presupposed condition of democracy.

In this intellectually packed article, Swyngedouw engages with a vast array of different post-foundational political scholars. While some would quibble with his readings, and while, at times, the encyclopedic coverage detracts from Swyngedouw’s own account, the strength of this article is the way it brings together and works different currents within this field.  For readers far more familiar with feminist, social democratic or traditional Marxist political analysis, what is striking about Swyngedouw’s analysis (and of the literatures he works with) is its drive to give politics, or more accurately, “the political” autonomy and distinction from “the choreography of the social.” This also is its challenge, and when substantive political issues are tackled, it is not always clear what this framework adds. Speaking in the name of a new universal, feminist, gay, and other non-class based left agendas often become reduced to interest-based identity politics in ways that ignore the substantial challenge they pose to common-sense thinking. As a consequence, post-foundational political thought risks significantly under-estimating how political movements, such as feminism, have for decades (and longer) ruptured existing consensuses around intelligible speech — identifying previously unrecognized harms, and re-imagining and re-valuing new forms of social organization and ways of living – a process far more resonant with Rancière’s dissensus than with his police.

Post-foundational political theory’s intellectual insularity and limited engagement with a more multi-dimensional left politics can be frustrating. Frequently, it leaves many contemporary political challenges unaddressed (for instance, the problem of equality’s indeterminacy, when deployed by conservative as well as more progressive forces). However, what this body of work does productively contribute is a challenge to how we think about political form – of how, where, and what politics involves – in the face of tendencies to reduce politics to administration and government on the one hand, or to social antagonisms on the other.  Insistence on the unpredictable, contingent, supplementary character of political engagement, and on the interrelationship between organizing and disorganizing raises important questions for a left politics that seeks to develop new forms of institutionalization (or hegemony) while accepting and working with its contestation – from the right as well as from the left. Both parts of the ordering-rupturing tension are important. However, the emphasis on challenge and the unexpected, within post-foundational theory, can sometimes too quickly dismiss or bypass political contradictions within the state, in other words, the dissensus operating at the very heart of governmental and regulatory practice. For, public institutions and political activity are not worlds apart; and while the state may work to “tame” more radical politics, the potential for their irruption remains ever-present.

Uncomfortable Marriage

Jan 9, 2013 Robert LeckeyAdd a Comment

Robert Leckey

Much legal scholarship about same-sex marriage by liberals presents arguments for judges to use when interpreting constitutional rights. Another current of critical research, from queer, feminist, or other left scholars, explores how expanding access to marriage may disadvantage those who will not or cannot marry, undermine an intersectional queer politics, or both. Much less writing has explored the impact, for gay men and lesbians who might marry or who have married, of the lobbying and litigation that made doing so possible.

Some reasons for this relative neglect are obvious. It may be too early to have meaningful data. The question may be one for sociologists. But surely another is that a lot of people assume that same-sex marriage is a good thing for at least those who take it up. Yuvraj Joshi’s paper joins the critical research about the potential harms arising from the campaign for same-sex marriage and its realization for those who wouldn’t walk down the aisle even if they could. But it also enriches legal scholarship by exploring the psychological effects of same-sex marriage for those who marry.

Joshi develops “respectable queerness” as a theoretical framework for understanding the implications of recognizing same-sex domestic relationships. For him, the crucial distinction lies between respectability—the state or quality of being proper, correct, and socially acceptable—and respect—due regard for the feelings, wishes, or rights of others. Respect, he argues, connotes acceptance of difference; respectability connotes acceptance of the norm. Respectability is a system of hierarchy grounded on distinctions between the respectable and the degenerate.

On Joshi’s reading, and it is a fair one, the push for same-sex marriage has proceeded less by demanding respect than by attempting to demonstrate gay men’s and lesbians’ respectability. The agency associated with respectability is a key analytical insight: while assimilation refers to pressures imposed by the mainstream, respectability gestures to efforts made by gay men and lesbians to remake themselves as worthy of recognition. Think of the factual accounts of model plaintiffs advanced to courts in same-sex marriage litigation, which were advanced in order to establish couples’ stability and heteronormativity.

Drawing on Judith Butler’s work, Joshi suggests that respectability is performative. It consists in performing the actions associated with it. One result is the potential gap between what a person does and who a person is, between performance and self. (Joshi is sensibly alert to the complexity of claims to authenticity and his analysis does not depend on a person’s having “a true identity or essence that is independent of social context”; it is enough that situated individuals have a sense of who they are and who they wish to become.)

In particular, there may be a gap between the respectable, public self and the private self’s ways of living. What exacerbates the gap is that the legal and social movement for recognizing respectable same-sex couples has re-privatized queer desire and sexual practices. Openness about queer desire and its expression becomes harder, argues Joshi, as public recognition of gay relationships is secured on the basis of their respectability. Desire may split into two parts, as the same non-heterosexual subjects desire to be publicly respectable and privately queer. He continues: “[E]ven as more gay people ‘come out’ into the public world, aspects of their sexual identities remain hanging like skeletons in their closets.” Concretely, some couples experience a dissonance “between the appearance of monogamy in public and their privately non-monogamous existence.” (It is exemplary of the paper’s theoretical and methodological eclecticism that the discussion moves from Frantz Fanon’s “dual consciousness” to evidence gleaned from online social networks such as Jake and Gaydar.)

Although other parts of the paper draw on authors such as Michael Warner, Nancy Polikoff, and Dean Spade to elaborate on the harms from respectable queerness for the political organizing of those queer constituencies whose members don’t want to marry, the paper’s originality lies in its focus on those who do marry. For me, the paper’s thrill—in an experiential, non-propositional way—lay in the clarity with which it identifies the predicament of those who take up the public forms of recognition now accessible in many western jurisdictions while knowing that their private lives do not match publicly articulated and sustained assumptions.

Reflection has led me to further questions. What degree of coherence or unity ordinarily bridges the public representations ascribed to non-queer people and their private experiences? Whose business is it, if anyone’s, when inaccurate assumptions are made about a legally recognized couple’s private life? Where a form of legal recognition has been secured via strategic but politically problematic arguments—respectability and equality-as-sameness, say, instead of respect and robust claims to privacy—what ethical responsibility attaches to those who take up that form years later?