SWMS560/Midterm
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Driscoll, K. (2010) Midterm assignment. SWMS560.
Contents |
Introduction
"[The development of legislation is also a process of] normalization and naturalization that serve to veil the ruses of power." (25)
Excepting the election of public officials, demand for prisoner release, or the radical destruction of a government, law tends to be both the object and product of traditional political organizing. Gay marriage activists do not work toward the immediate recognition of specific, named pairs of individuals. Rather, their advocacy concerns contested readings of legislative texts such that unnamed, imagined couples may wed at unknown moments in the future. The entire system of law (and its manifold extensions into public and private life) is thus validated and empowered by the activists at the same time as they seek its revision. M. Jacqui Alexander's analysis of the Bahamas' 1991 Sexual Offences and Domestic Violence Act reveals some of the risks that accompany pursuit of social change mediated by law and demonstrates the richness of legislation as a site of critical inquiry. an
Law as cultural text
The phenomenon of law in contemporary democratic societies presents an unusual kind of text for analysis. Unlike literature or news media that reflect various ideological systems, the law acts as a tangible interface between ideology and structures of state power. Constitutions, statutes, amendments, and other legal codes are not merely records of ideology but explicit instructions for its preservation and proliferation. When law, like software code, is executed, it creates and destroys ideological categories such as "citizen" and "non-citizen", "innocent" and "criminal."
In the regulation of everyday life, law is superceded by social norms. The definition, regulation, and maintanence of norms are nuanced processes highly dependent upon cultural and historical context. Norms dictate the behavior of students in class, riders on the bus, and diners at a restaurant. Those who transgress the norms of a given social situation are likewise punished in a social manner. They may be treated coldly, excluded, reprimanded, or denied service.
In an ideal democratic society, legal code ought to be under constant review to reflect the evolution of social norms. But even in the best circumstances, the process of revising legal code is slow and cumbersome compared to the fluidity with which social norms adapt to changing circumstaces. As such, there is always a temporal delay during which social norms pass through a lawmaking process and are encoded as legal text. This moment of translation provides a gap into which the weaknesses of democracy and persistence of state power may seep in and settle.
The law is a modular system built on many small, interrelated pieces of code. Each piece must conform to certain standards to be enacted alongside the existing laws. Old laws there constrain the codification of new social norms. Even if the entire corpus of law is ultimately replaced, traces of the previous ideology will necessarily persist in the format and language of the new texts.
Fundamental to the efficacy of legal code is the creation of discursive categories among the people and institutions it is designed to regulate. Unlike software, legal code is carried out by human beings imbued with state power: police, judges, juries, etc. The codification of difference is required for the apparatus of law enforcement to function. Expressions of state power - surveillance, discipline, control – rely on categorization (Alexander, 2005, 25). Who is permitted mobility? What type of behaviour is considered unlawful? How is citizenship defined? Laws that fail to provide clear discursive categories are unenforceable.
1991 Sexual Offences and Domestic Violence Act
Alexander's analysis of the 1991 Sexual Offences and Domestic Violence Act reveals the degree to which dominant ideology is able to infiltrate changing social norms at the point of their codification into law (24). Beginning in the early 1980s, a popular women's movement in the Bahamas effectively "denaturalized" widespread sexual violence through highly visible political demonstrations in the broadcast media and on the street (31). After ten years, the Sexual Offences and Domestic Violence Act was discursively positioned by its sponsors as a symbol of the movement's success.
By passing the Sexual Offences and Domestic Violence Act, Alexander argues, the government successfully "co-opted" the popular women's movement and shifted attention away from a broad, popular mobilization to the narrow domain of law. Though the new legislation was circulated as a symbol of feminist victory, the priorities of the women’s movement were fundamentally mutated during their legal codification (33). To avoid disrupting existing legal doctrine, the women’s dynamic collective knowledge regarding sex and violence was constrained according to categories that did not reflect their lived reality. (For example, domestic violence and sexual abuse were encoded as distinct criminal activities.) In order to "legitimize their broader claims," the discourse of the women's movement was forced into relation with the court system and its "skewed, narrow definitions of violence" (39). The state was discursively positioned as acting boldly and bravely while critical members of the women's movement could be quietly disregarded as ingrates quibbling over details.
On its face, the Sexual Offences and Domestic Violence Act was a response to the violence identified by the Bahamian women's mobilization. It criminalized sexual assault, abuse, harrassment, and domestic violence as well as introduced a mandated reporting liability for anyone aware of child abuse. Along with these regulations, however, the Act introduced new criminal categories that were alien to the women's movement. Prostitution, gay and lesbian sex among adults, and failure to disclose HIV infection to a sex partner became criminal activities punishable by as many as 20 years in prison. The social change envisioned by the women's movement was transformed during the process of codification to reflect the priorities of the dominant state ideology; namely, the naturalization of heterosexuality and patriarchy.
The influence of heteropatriarchy did not manifest simply in the additional criminalization of homosexuality and prostitution. As discussed earlier, law enforcement depends on the production of clear categories. The process of codifying the social concerns of the women's movement resulted in new criminal categories that were largely unenforceable. The Act lacked an operational definition of "domestic violence", for example, and the mandatory reporting liability incoherently categorized many women as both perpetrator and victim (34). Written in a spirit of what Alexander terms "benevolent paternalism", this lack of clarity guarantees future opportunities to demonstratively naturalize patriarchy by making women and children more vulnerable and in need of protection than they were before the Act was passed (34).
Alexander describes the persistance of heteropatriarchy in the Bahamian law as evidence of "recolonization" by which the post-colonial government maintains certain legal structures inherited from the previous colonial regime. Central to these legal structures is an epistemology of private property and primogeniture that ensures the preservation of certain patrilinial fortunes (26). The text of the Sexual Offences and Domestic Violence Act, executed within this framework, reflects the social norms of women's mobilization only insofar as they are filtered by these demands (25). The resulting code is as effective at protecting private property as it is ineffective at stopping domestic violence.
In the limited episteme of law, relationships among people and institutions are knowable only through the vocabulary of property. Though no individual lawmaker may have intended it, the affordances and constraints of codification produced an overemphasis on issues of private property in the Sexual Offences and Domestic Violence Act. One reason that domestic violence and sexual assault may have been left fragmented and undefined is because the damages incurred by these crimes is difficult to quantify in terms of property loss. For the same reason, there is an unusually thorough explication of the division of assets following spousal separation. This undue emphasis on private property interpellates the Bahamian woman as a historical "wife" (37). As such, she is understood as a dependent "charge" of her husband; not a property owner nor holder of significant wealth (36). Pairing a lengthy discussion of assets alongside vague domestic violence legislation casts suspicion on female victims of spousal abuse as extortionists and imposters (39).
According to Alexander's critique, the interaction of domestic violence and private property within the domain of law endangers the married women of the Bahamas. As the law assumes heterosexual marriage as the normative domestic partnership, the dependent wife is a financial liability to her wage-earning husband. In cases of child abuse, her role as mandated reporter makes her a criminal liability. To report the abuse is to risk losing (relative) domestic safety and stability with no guarantee that the report will be either believed or prosecuted.
Risks of engaging with the law
The codification of the 1980s Bahamian women's movement as the 1991 Sexual Offences and Domestic Violence Act provides a powerful case study for understanding the role of law in social change. From the privileged vantage point of a historian, participants in the women's mobilization first gathered regulatory power through uncoded social norms. In this form, the violence facing women in their homes and communities was both knowable and coherent. But once codified into a law ostensibly designed to limit and regulate violence, the coherence and lived experences of the women were lost amid the influence of a powerful state interest in maintaing heteropatriarchy. Violence was fragmented and categorized according to existing legal frameworks that failed to address the everyday needs of women in the Bahamas. Their priorities thus narrowed and minimized as legal code, the women's movement as a whole was destabilized.
The case of the Bahamian women's movement suggests that social change may be most powerful when it is left uncoded. That the uncoded women's movement was incompatible with the system of legal regulation may have been its strength. As an uncoded social norm, the values of the women's movement were regulated through social acts: street demonstrations, broadcast media interventions, and crisis centers. Once the movement attempted to engage with the system of law, the locus of regulatory response shifted from the women themselves to the state's apparatus of law enforcement. The process of codification transformed the social values of the movement into a form compatiable with the system of law but the result was a weaker and more fragmented enforcement regime than might have existed if the women's movement continued to grow in an uncoded fashion.
The post-colonial government was able to discursively wield its participation in the women's movement as evidence of progressive "maturity" at the same time as it maintained a system of heteropatriarchy inherited from colonial rule (64). Several questions persist in the wake of this observation. Was this outcome inevitable? What did the women's movement stand to gain from engaging with the system of law? Is it possible to simultaneously harmonize activist work within and without the bounds of the state apparatus? Alexander's analysis of the 1991 Act offers a methodological model for critically approaching legal texts. By locating similar cases in which a popular movement attempted to engage with the dominant system of law, future comparative research might offer a better understanding of the risks involved with legal codification.
References
- Alexander, M. J. (2005) Pedagogies of crossing: Meditations on feminism, sexual politics, memory, and the sacred. Durham: Duke University Press.
