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Feminism and Penal Expansion: The Role of Rights-Based Criminal Law in Post-Neoliberal Ecuador

  • Silvana Tapia Tapia
Article

Abstract

This article analyses feminist discourses on the criminalisation of violence against women in Ecuador, after the enactment of a “post-neoliberal” constitution. It responds to arguments in feminist legal theory, which affirm that penal expansion thrives through neoliberal globalisation, and that certain feminists have sponsored this carceral-neoliberal alliance, over and above redistributive concerns. However, in Ecuador, many feminists who participated in a recent criminalisation process also endorsed the post-neoliberal government’s social redistribution programme. Ecuadorian feminism therefore complicates current discussions on carceral and governance feminism, which link penal expansion with neoliberalism and an absence of redistributive concerns. Ecuadorian left-leaning feminists use rights-based frameworks to reconcile penal interventions with potential abuses of coercive power. This allows them to regard criminal justice as minimally problematic within the redistributive agenda they endorse. At the same time, the penal approach of Ecuadorian feminists runs the danger of marginalising legally pluralistic approaches to justice.

Keywords

Carceral feminism Violence against women Ecuador Post-neoliberal Human rights Governance feminism 

Introduction

In 2010, a government-led campaign called “React Ecuador! Machismo is Violence” introduced a series of videos on national television. In one clip, a young girl and boy are shown as they grow up: she is surrounded by pink wallpaper, dolls, and makeup; and he, by blue decorations, toy guns, and soldierly patterns.1 As young adults, on their birthdays, she is given handcuffs as a present, and he receives boxing gloves. Then, they meet for the first time and look at each other in mutual attraction while wearing the props, signalling the abusive nature of their future relationship. For the first time, the government portrayed machismo as a cultural and social phenomenon, acknowledging that traditional gender roles are societal rather than biological factors underlying violence against women (VAW).

The campaign began under the presidency of Rafael Correa, a young politician and academic, not linked with the traditional political parties, who won the election of 2007. Popular discontent had escalated over the course of the late 1990s, due to the implementation of the “Washington Consensus”2 and the bailout of the banking system. Correa, who condemned these events, had secured the support of left-leaning leaders to bolster his electoral campaign. He called for the end of “the long and sad neoliberal night” (Correa 2011), attributed to previous governments’ efforts to “modernise the state”, by privatising public services, and reducing social welfare expenditure (Endara 1999). Correa’s “left-turn” (Lind and Keating 2013, 515–533) promised to leave behind a model that had been rejected by counter-hegemonic movements, including indigenous and women’s organisations. This “Citizen Revolution” positioned Ecuador as a one of the “pink tide”3 countries, marking the beginning of the “post-neoliberal” period. This term was used to describe transformations in Latin American development, “with popularly elected governments embarking on reversals of neoliberalism informed by autochthonous notions of human wellbeing” (Radcliffe 2012, 240).

Once elected, Correa summoned a Constituent Assembly. From 2007 to 2008, various social movements participated in the process and discussed their demands with the legislative commissions from the Assembly. These exchanges with civil society, including women’s and indigenous movements, legitimised the process as deeply democratic. As a result, unprecedented constitutional provisions were enacted, such as the recognition of Pachamama (Mother Nature) as bearer of legal rights, and Sumak Kawsay, the indigenous approach to community life, as a fundamental principle. Roughly translated as “good living” or “good coexistence”, Sumak Kawsay is a monistic concept, which emphasises the community as the core political subject, prioritising relationality over individualistic approaches to rights.

Given indigenous peoples’ history of resistance in the country, these introductions were read as a vindication of historically subordinated knowledges. At the same time, indigenous cosmovisions are regarded as counter-hegemonic for several reasons. For instance, regarding gender, Andean thought is based on a non-hierarchical complementarity between the feminine and the masculine, which coexist in reciprocal interdependence (Lugones 2009, 153). Complementarity is so vital that contrast becomes relative, situational and negotiable, allowing for diverse expressions of gender to be embraced (Dean 2001, 143). Moreover, Andean justice offers alternatives to carcerality,4 given that the restoration of community life is central to conflict resolution (Ávila 2012, 279). Technologies like prison, based on isolation and exclusion, are not utilised in indigenous justice decisions.

Indeed, penal expansion has been associated with neoliberal and colonialist practices (Garland 2012; Bernstein 2012, 233–259; LeBaron and Roberts 2010, 19–44; Wacquant 2009; Christie 2000; Sudbury 2005), which puts penality at odds with decolonial, redistributive projects. Still, researchers have pointed at penal expansion in post-neoliberal Latin America (Ávila 2013; Dávalos 2014; Sozzo 2015, 1).5 In Ecuador, a penal code draft-bill, widely considered punitive (Ávila 2013; Dávalos 2014), was presented to the National Assembly by the Ministry of Justice in 2012. As a result, the maximum accumulation of penalties escalated from 25 to 40 years, most carceral sanctions increased, and over 70 new offences were created (El Universo 2014).

Elements of this penal expansion can be linked to feminist-sponsored legal reform, as noted by the feminist critics whose work I discuss in this article. The new Ecuadorian Penal Code criminalised “violence against women and members of the nuclear family”, which had previously constituted a misdemeanour, and “femicide”, a form of murder aggravated by the victim’s gender within unequal power relationships (Lagarde 2010, xi). The Parliamentary Group for Women’s Rights, many of whose members were aligned with the government, promoted the reforms. However, spokeswomen from local and transnational non-governmental organisations (NGOs) questioned the reforms, arguing that treating domestic violence as a more serious offence would negatively impact on women’s access to justice (El Universo 2012). Such claims were based on experience: Act 103 of 1995 had provided complainants with an expeditious procedure and immediate restraining orders against their aggressors. NGOs anticipated that these measures would be overridden by the complex procedural rules of the new code.

Regarding these divides, while no clear line between oficialistas (government-aligned feminists) and opositoras (government opponents who are mostly NGO-based) can be drawn, my fieldwork revealed that oficialistas were generally younger and more invested in criminalisation than their older, NGO-based counterparts. Throughout the 1990s, the state’s (now extinct) Women’s National Council (CONAMU) had maintained close links with the NGOs. By contrast, after Correa’s election, NGOs were displaced (Ramírez Gallegos 2010, 83–101), and a new generation of feminists entered state offices, including ministries, provincial governments, and the National Assembly. One opositora municipal officer commented: “The government has its own women’s movement […]. CONAMU used to be related to the women’s movements, but not anymore, now the regime has its own movement aligned with its own postulates” (personal communication, 13 February, 2015).

This is the context in which I explore how feminist groups justify the criminalisation of violence against women in post-neoliberal Ecuador. I shall stress that the term “post-neoliberal” does not convey a definitive close of neoliberal trends nor a full break with global capitalist power arrangements. Certainly, commentators have framed Sumak Kawsay as a post-neoliberal alternative to development (Gudynas and Acosta 2011; Radcliffe 2012), and it is well-known that the left-turn strengthened social welfare and reduced poverty (Grugel and Riggirozzi 2012, 1–21; Ospina 2009, 195–218; Radcliffe 2012, 240–249). However, determining the extent to which the Citizen Revolution “fully” ruptured the neoliberal paradigm is not my objective. Instead, this article focuses on the feminist discourses used to justify criminalisation, their relationship with redistributive goals, and the present and potential negative effects of said discourses. In this respect, I stress the “masked” governmental devices that operate within non-neoliberal policy. I highlight the role of rights-based frameworks, not only in justifying criminalisation, but also in producing a “benign” and democratic criminal law, which masks the oppressive effects of penal expansion, including diminished access to justice for violence survivors, and the displacement of indigenous justice alternatives.

Methodology

I employed a multi-method qualitative approach, combining document analysis, interviews, and fieldwork. I conducted 25 semi-structured interviews with self-identified feminists who participated in the 2012–2014 penal reform process. Interviewees were first selected due to their public involvement with the reform, and from there, through snowballing. The sample included: 6 members of the National Assembly (out of 11 who drafted the reform proposal); 8 public servants; 7 staff members of NGOs; and 3 independent professionals, mostly women and one man, aged between 28 and 60. I ceased to invite participants when I reached the point of saturation, considering that testimonies were not significantly contradictory. Interviewees were mostly mestizas (of mixed white and indigenous ancestry), with one indigenous and one Afro-Ecuadorian participant. This sample coincides with how most researchers have characterised the mainstream women’s movement in Ecuador (Rodas Morales 2007). Participants spoke about the penal code, the impact it is having on access to justice, and the challenges and advantages of criminalising VAW. While most participated anonymously, public figures were given the choice to use their real names. Schedules were approved by the ethical board at the University of Kent.

In addition, I observed a public event in which judges at courts for women and the family were invited by government-aligned assembly members, to discuss another penal code reform. This one-day session, as well as the interviews, were recorded and then transcribed by an external service. I translated all the texts from Spanish into English. Finally, I conducted archival research and examined, parliamentary records, feminist publications and legal databases.

To code the data, I implemented a “dual-focus” approach to discourse analysis, identifying hegemonic fields of intelligibility, but also considering how subjects use available discourses to exercise or resist power (Bacchi 2005, 198–209). In this way, while human rights were identified as the “grid” that makes criminalisation justifiable, they were also used to attempt to moderate state coercion. For coding assistance, I used a qualitative data-analysis software package and identified overarching themes and patterns (Bernard and Ryan 2009), considering the frequency of the themes, portrayals of the same events by different individuals, relationships between interviewees and the government, and their opinions regarding the adequacy of penal reform.

Current Debates on Governance Feminism and Penal Expansion

A body of mainly Anglo-American scholarship has analysed feminist criminalisation demands in the context of neoliberal globalisation. Authors have questioned feminist sponsorship of criminal laws on trafficking, prostitution, and wartime rape (Halley 2008, 1; Bernstein 2007, 128–151). Such critiques are connected to arguments made by critical criminologists, which suggest that penal expansion is linked to neoliberal policies, which have steered public monies away from the provision of welfare (Garland 2012; Wacquant 2009; Simon 1998, 2007). Prisons, then, have become profitable industries that capitalise on the most marginalised persons (Christie 2000; Sudbury 2005).

Elisabeth Bernstein coined the term “carceral feminism” to refer feminist prioritisation of incarceration over social redistribution as a response to VAW (2007, 128–151). She notes that “feminism, and sex and gender more generally, have become intricately interwoven with punitive agendas in contemporary US politics” (Bernstein 2012, 233). These politics have, she argues, intertwined with neoliberalism and international human rights to produce a carceral turn in advocacy groups previously organised for economic justice and personal liberation. Human rights discourses, then, are a key vehicle for the transnationalisation of carceral politics, and women’s human rights have been narrowed down to matters of sexual violence, in detriment of issues such as cultural and economic rights. Bernstein affirms that a careful consideration of the neoliberal carceral state within feminist discussions of gender, sexuality, and the law, is urgent (2012, 233–259). Similarly, some scholars in Ecuador and Latin America have argued that feminists who demand criminalisation are “feeding” the punitive agenda and distancing themselves from redistribution (Paladines 2014; Zaffaroni 2009, 321).

In addition, “governance feminism”, which broadly designates state and non-state feminist impact on legal networks (Halley et al. 2018), has been associated with the multiplication of punitive laws on gender violence. Janet Halley (2008, 1) has argued that governance feminists often portray sexual violence as a “war against women”, failing to encompass men’s experiences of violence, and potentially harming them. This is because these forms of “updated radical feminism” are “strongly committed to a structuralist understanding of male domination and female subordination” (Halley 2008, 1). It is argued that such an understanding is implicit in the proliferation of criminal laws and that feminists’ concurrent distancing from social redistribution concerns requires attention. For example, Prabha Kotiswaran argues, specifically in the context of sex work, that “focusing on a politics of redistribution rather than of harm and injury” (in Halley et al. 2006, 411) is necessary to broaden our understanding of the realities of sex workers lives.

In view of these discussions, if penal expansion is linked to a kind of neoliberalisation of feminism, then a feminist re-centring social and economic redistribution should contribute to displace carceral narratives. Yet, this article shows that in Ecuador many feminists demanding criminalisation are strongly committed to a redistributive agenda. Thus, the contention that mainstream feminism has moved away from yesteryear’s concerns with social inequality is challenged by my finding that groups of Ecuadorian feminists promote redistributive projects and criminalisation at the same time.

Violence Against Women, Human Rights, and Penal Guarantees in the 2008 Constitution

The 2008 Constitution has been identified with “New Constitutionalism” (a rights-based constitutional law) and “Andean Constitutionalism”, in reference to Bolivia’s and Ecuador’s incorporation of Andean principles (Santos 2010a, 4; Santos 2010b, 63–76; Fitzpatrick 2014, 117–133).6 These currents are considered a reaction to the hegemony of European legal structures (Ávila 2013) and a vindication of indigenous knowledges (Quintero López 2008; Dávalos 2008, 29 September 2014). Intellectuals have argued that legal pluralism could sustain the construction of “a utopia of our own, pre-hispanic and which becomes anti-capitalist” (Ávila 2013, 186, emphasis added). Such claims are largely based on theories that have posited coloniality as the axis of capitalist globalisation (2000, 342–386), and as a crux around which power relations, including race and gender hierarchies, are organised (Lugones 2007, 186; Lugones 2010, 742–759; Stoler 1995). In the penal arena, imprisonment has been considered a colonial technology that expands disciplinary regimes and aggravates the oppression of marginalised groups, such as women, people living in poverty, and non-white persons (Sudbury 2005; Snider 1998, 1–39; Haney 2010, 73–97; Howe 1994). However, the fact of penal expansion in Ecuador makes it pertinent to ask whether feminists have used these counter-hegemonic concepts and strategies to develop a critique of criminal law. Concretely, has the “post-neoliberal turn” impacted on feminist uses of penality in relation to VAW? To address these questions, it is necessary to examine the 2008 constitutional framework on VAW and its reliance on human rights.

International agencies like the United Nations (UN) and the Organisation of American States (OAS) have successfully disseminated rights-based approaches to VAW in Latin America since the 1970s, which effectively docked in mainstream feminist practices.7 In fact, these approaches facilitated a “boom” of domestic violence laws in Latin America throughout the 1990s,8 such as Act 103 of 1995 in Ecuador. Furthermore, a human-rights-based approach to VAW consolidated in the 1998 Ecuadorian Constitution, which incorporated feminist demands for the first time, including quotas and the recognition of sexual and reproductive rights (Vela 2006, 263–268). A decade later, the rights-based framework introduced in 1998, was not reappraised. While the 2008 Constitution incorporated indigenous justice, the human rights framework was preserved nearly intact in matters of gender violence. Sumak Kawsay is invoked in constitutional provisions referring to environmental rights, property, and development,9 but it is not mentioned on sections about personal integrity, which constitutes the foundation to legislate VAW. Instead, giving continuity to the framing that was consolidated in the 1990s, the new Constitution privileges mainstream human rights. This reaffirmation is regarded by most women’s organisations across the political spectrum as advancement for the protection of women.

In fact, the 2008 Constitution prescribes a specialised process for VAW (Art. 81), meant to prosecute family violence, sexual offences, and other crimes against “groups of priority attention”. These provisions stress the state’s obligation to protect personal integrity and the right to a life free of violence by enforcing legal sanctions. As a result, criminal justice is reproduced as the preferred state response to VAW. Put in a different way, the state’s obligation to protect women mainly translates into carrying out penal prosecution. Art. 77-8 explicitly enables actions against family members who commit domestic violence, and even the right to the specialised penal process established in Art. 81, while intended to widen access to justice and minimise re-victimisation, frames the protection of women mainly as a set of legal conditions that enable penal litigation and promote the use of the criminal justice apparatus.

One key factor in the production of this rights-based penal regulation has been the influential work of progressive scholars who have advanced “penal guarantees” (Ferrajoli 1995) and the “constitutionalisation of criminal law” (Ávila 2009; 2013; Dubber 2004). Some authors, including feminists, have proposed a penal legislation whose objective is not only to punish but also to limit punitive power (Vallejo Jiménez 2011, 141–154). This approach is reflected, for example, in the constitutional principle declaring that the state should defend the “rights of the victims, of the prosecuted and of those deprived of their freedom” (Ávila 2013, 204). Further provisions institute penal guarantees to assure due process; these have often been invoked to overcome the paradox that criminal law restricts individual freedoms to repel attacks on those very freedoms—as Dubber puts it, “criminal law consists of the state’s most potent and most potentially intrusive means of interfering with those very rights” (Dubber 2004, 1–77, 46).

In this way, various feminist organisations and scholars in Ecuador use rights-based frameworks to make sense of penality. Feminist author Gayne Villagómez, for instance, acknowledges that the new Constitution focuses on human rights, including women’s rights and the right to a life free of violence. While she recognises that law has been “one of the main articulators of feminine subordination”, and that Latin American criminal codes are “permeated by archaic conceptions when it comes to women”, she posits penal reform as an “opportunity to substantially advance” women’s rights (Villagómez, 2013, 53–57). Villagómez acknowledges that penalising VAW may be problematic, but this tension is resolved through rights-based arguments:

Minimal or guarantee-based criminal law does not perceive offences as less serious, far from it, but it addresses them from the perspective of social and individual responsibility on the one hand, and on the other it provides the victim with an active role to find the reparations to her life project (Villagómez 2013, 53).

From these perspectives, penal guarantees humanise those involved in a criminal trial. Since incarceration can only emerge from a valid process through which an offence has been duly substantiated and whereby the rights of the parties have been respected, imprisonment becomes reasonable and even desirable. Expanding criminal law is thus portrayed as advantageous, despite recognising the patriarchal history of penal institutions, insofar as rights-based principles impose limits on penal coercion.

In addition, because they are meant to minimise the possibility of arbitrary state action, penal guarantees emerge as necessary within democratic orders. As a result, with penal guarantees in place, incarceration can be posited as legitimate. Furthermore, the penal apparatus is itself presented as a guardian of human rights. From a women’s rights’ perspective, then, penalising VAW is justified not only as a response to gender violence, but also because there are limits to penality, which human rights impose on the state and penal guarantees ensure.

As we see, rights-based criminal law not only limits state intervention as in classical liberal legalism. Now that legal rules have evolved into guarantees, they set out to transform state coercion into the very custodian of rights. Coercive power is thus rationalised and reinscribed as a democratic force. In consequence, if penal guarantees are conceived as conditio sine qua non for the existence of a democratic state, penality, as an effect, also becomes an indispensable element for the construction of rights and justice within democracy. Appeals to criminalisation (feminist or not) are always already legitimised at the highest level of the legal system within progressive orders: they are rational responses to violations of human rights.

In Ecuador’s post-neoliberal context, these renewed approaches to criminal law are not perceived as politically problematic by feminist promoters of redistribution, despite their strong rejection of neoliberal views on the economy and the market. As I will demonstrate in the next sections, rights-based criminal law is instead regarded as the best instrument we currently have to protect women. Amongst feminists, I argue, rights-based penality makes criminalisation viral and displaces non-hegemonic legalities, which are a crucial element of the new constitution’s emancipatory horizon, and could potentially be used to address VAW. Rights-based penality provides legal and ethical justifications to perpetuate criminal justice as the rational response par excellence. Penal guarantees and rights-based framings facilitate perceptions of criminal justice as transformative and progressive, which in turn reproduces criminal justice as minimally problematic amongst left-leaning feminists.

Feminists and the 2014 Penal Code: Redistribution, Criminalisation, and the Related Divides

Drawing extensively from fieldwork, this section shows how feminists made sense of criminalisation during the 2012–2014 penal reform process. Through a close examination of documents produced by government agencies and feminist ad-hoc alliances, as well as the testimonies gathered from interviews, I show how feminists discussed redistribution in relation to gender inequality. I then present arguments from government-aligned feminists (oficialistas) and compare them with those posited mainly by NGO-based feminists (opositoras) who opposed penal intervention in certain forms of gender violence. I explain how rights-based frameworks traverse these groups’ narratives, together with appeals to technicality, which in turn posit criminalisation as a tool to facilitate the quantification of violence. I suggest that such framings largely confine feminist action, usually side-lining alternative knowledges and strategies. I also argue that penality has entered leftist feminist discourses and has been articulated into the post-neoliberal project as a non-problematic, even redistributive device.

To better explain my contention, I will briefly refer to the reconfigurations I identified within the women’s movement after 2008. During the 1990s, when the movement consolidated in Ecuador, most feminists were NGO-based. After 2008, however, many young feminists endorsed the Citizen Revolution and joined the reformed state agencies. When the 2007–2008 constituent process started, women’s organisations across the country put together a “Women’s Pre-Constituent Assembly”. The main agreement reached at this forum was to defend the gender equality provisions of 1998 at all costs (Rosero 2007, 109–113). Consequently, the Women’s Agenda for the constituent process reflected the concerns of women’s organisations vis a vis the perceived risks of adopting unexplored legal frameworks. In other words, rather than reimagine gender-state relations, the Agenda defended what had been achieved in the past.

At any rate, the Women’s Agenda endorsed the Citizen Revolution’s economic project, adding that it should be “caring, non-discriminatory, communal, and equitative. It should democratise the means of production, redistribute wealth amongst individuals, collectives and regions, with social, economic and environmental justice” (Movimiento de Mujeres del Ecuador 2008, 8). However, it did not mention Sumak Kawsay at any point. Although indigenous women’s organisations participated in the Pre-Constituent Assembly, their demands were not taken up. Indigenous leader Cristina Cucurí, who led a campaign to ensure the participation of women in indigenous decision-making, noted: “in [the Constituent Assembly] we saw that our proposals had fallen off along the way: the topic of indigenous women did not exist anymore in the proposal of the general women’s movement” (2009, 132–135). Rather than discussing indigenous approaches to gender justice, the mainstream movement emphasised the “pre-eminence of human rights” and “universal and non-discriminatory inclusiveness” to demand gender equality (Movimiento de Mujeres del Ecuador 2008, 8).

Furthermore, the Women’s Agenda characterised penal sanctions as indispensable: “it is necessary to identify material and symbolic forms [of discriminatory practices], both visible and subtle, and act upon them through concrete measures for sanction and non-impunity” (Movimiento de Mujeres del Ecuador 2008, 3, emphasis added). The focus on penality was likewise evident in the rejection of statutory limitations and alternatives to incarceration in VAW: “[…] these crimes are not susceptible to pardon or amnesty and they are not susceptible to an alternative sanction” (Movimiento de Mujeres del Ecuador 2008, 10). In this way, mainstream women’s organisations ruled out alternatives to penality from the outset.

Later, as the new Penal Code was designed, NGO-based feminists engaged in dialogue with the legislature, particularly the Parliamentary Group for Women’s Rights. The 2012 First Debate Report (FDR) from the Justice Commission of the National Assembly registers meetings between lawmakers and representatives of women’s shelters and NGOs, who met to discuss domestic violence, femicide, abortion, and sexual violence (Comisión Especializada Permanente de Justicia y Estructura del Estado, 2012). However, disagreements were manifest from the beginning. Conflicting views regarding the best way to judicially manage VAW, together with the weakening of NGOs in a context of increased tension between the government and social movements (Lind and Keating 2013, 515–533; Ramírez Gallegos 2010, 83–101), resulted in marked divides amongst feminists.

When asked about their relationship with non-government activists and organisations, four out of six interviewed lawmakers mentioned their duty to respond to their constituency as a reason why they could not attend to some petitions of the NGO-based movement. The latter’s confrontational stance was often interpreted by assembly members as failure to understand the commitments of popularly elected officers.

Interestingly, government-aligned lawmakers (oficialistas) depicted NGO-based feminists (opositoras) as a corporate group of sorts. Although they did not dismiss their demands altogether, oficialistas did suggest that opositoras failed to address widespread social imbalances, such as economic inequality. Oficialistas characterised opositoras’ requests as upper-middle-class demands, not crucial to economic redistribution. In this sense, Rosana Alvarado, Vice-President of the National Assembly at the time of the interview, considered that the NGO-based movement had become “mono-thematic”, meaning that activists failed to reckon with problems that affect the Ecuadorian population at large:

I believe that this has been a mistake of the feminist movement… of some of the feminist movements, to think that feminism is reduced to sexual and reproductive rights. This is a fundamental and determinant part of feminism, of course, but it is not just that. It is [about] combating all the inequalities and all the violences, and one of the harshest violences against women is poverty (personal communication, April 21, 2015).

Diego Vintimilla, also a feminist oficialista, agreed:

[…] there are intransigent stances. I do not mean that they are intransigent in their radicalism, but rather that they isolate themselves in the logic of advocating for women’s rights because they are women. [It is] like they are detached from the other components of social life, detached from [the fact] that in Ecuador other issues of rich women, of poor women, of exploitation, operate. […] I do put a lot of emphasis in the economic aspect as one of the central elements that enable or perpetuate schemes of domination between men and women

(personal communication, April 19, 2015).

Regarding criminalisation specifically, the oficialistas’ plan was to incorporate all the VAW infractions into the 2014 penal code, rather than create a specialised law, which had historically been the NGOs inclination. This will to criminalise while promoting redistribution, complicates critiques of governance feminism, which connect the expansion of carceral strategies to the decline of redistributive agendas within feminist networks (Bernstein 2012, 233–259; Halley 2008, 1). Considering that the 2008 Constitution was meant to produce a radical political shift, the fact that penalty continued to expand reveals that increased punitivity was not regarded as an obstacle to deploy the anti-neoliberal agenda. Leftist feminists defended criminalisation, and to a degree dispensed with NGOs demands, in part because they viewed said demands as inessential to advancing social welfare. Government-aligned feminists did not identify blatant incompatibilities between the government’s redistributive goals and the proposed criminalisation strategies. For their part, non-state organisations expressed scepticism regarding the ways in which VAW would be managed by criminal justice. Moreover, NGO staff denounced how the regime’s project was prioritised over the feminist cause by oficialistas:

[…] what [the government-aligned feminists] have told us is that they prioritised the political project… but then, what is a political project without women, without the women’s agenda? I mean, this cannot be a dichotomy: either the project or the feminist agenda (feminist activist, personal communication, April 15, 2015).

Of course, NGO-based opositoras did not reject criminalisation altogether. In fact, virtually all interviewees agreed that criminalisation is indispensable to protect women’s rights. Lawmaker María Paula Romo synthesised the situation: “The idea that we had to penalise, that the protection of a right is linked to the penalisation of an act, is too deep-rooted to question, right?” (personal communication, April 22, 2015).

In addition, the symbolic power of criminalisation to convey social rejection and to make women’s subordination visible, was reaffirmed by insiders and outsiders of the Citizen Revolution. In this way, to most, the creation of the femicide offence was a landmark. A Minority Report presented to the National Assembly stated:

Albeit in the current legislation we already find hate crimes, it is an advancement that femicide is incorporated as a criminal category, as it is being done in other [national] legislations. The change in name or its specification will not necessarily result in immediate decrease [of killings], but it is very important because it allows us to make the problem visible (Romo 2012).

In parallel, although fieldwork revealed that most feminists were aware of the limitations of criminal justice, no participants proposed alternatives. Rather, their narratives reflected trust in the ability of law to correct itself through the gradual deployment of human rights. As one histórica10 put it:

[…] sometimes the great excuse is that penal policy is not adequate for prevention… then we say, therefore, it is about the integral protection of rights. Because penal policy can effectively play a role if you have systems of integral protection of rights which oversee prevention, assistance to victims, at the rural level, with multiple services (histórica feminist activist, personal communication, March 16, 2015).

In this context, the legal foundation of the criminalisation of VAW was to protect the right to a life free of violence, which is constitutive of the human right to personal integrity (Article 66 N. 3 of the Constitution). Proposing criminalisation was thus presented by government-aligned lawmakers as evidence of the regime’s commitment to protect women. For instance, oficialista Paola Pabón considered that “the penal field in this case, with these great achievements that we have made, can become an instrument to defend the lives of women; because when we talk about violence we are talking about life” (personal communication, May 7, 2015). Also, penal expansion was shown as evidence of compliance with international human rights instruments. As Rosana Alvarado recognised:

[…] right now we are expanding criminal law. […] Everything that refers to discrimination, to hate crimes, to crimes against humanity, starts to be integrated into the national legislation although it used to be only a matter of international agreements and treaties […]. Therefore, this is a criminal law that has grown, that is growing, and from that point of view I would say, feminism also must use that criminal law (personal communication, April 23, 2015).

The quote above illustrates how penal expansion is associated with an improved protection of women’s rights from the perspective of a leftist feminist. A key factor contributing to this conciliation is the portrayal of criminal law as a technical tool. Feminist research has shown that numbers, statistics, and appeals to efficiency often mask hegemonic discourses (Bumiller 2008; Corrigan 2013). In this sense, one recurrent argument referred to criminalisation as a mechanism to compile disperse penal provisions in a single body of law, producing penal reform as an efficient, systematic way to legislate. Similarly, criminalisation was described as an effective instrument to provide more precise categorisations of the criminal offences and enable the quantification of the addressed social problem as a result. According to oficialista Diego Vintimilla:

Regarding femicide […], I believe that the penal code does not eliminate the possibility that there be women who are assassinated because they are women. But it does make a difference in enabling to count, enabling a record of this, right? I say sometimes that it would sound too harsh to say that we know how many women have died, but it is even harsher to say that we do not know how many women have been killed (personal communication, April 19, 2015).

Along these lines, an opositora public officer at a prefecture said:

[…] incorporating femicide in the end allows us to not have a hidden number, it lets us locate key issues. It also lets us have statistics and put an end to the theme of “crimes of passion” for good, and actually talk about family violence, femicide, terms that are pertinent, and to have real data (personal communication, April 16, 2015).

Criminalisation was thereby viewed as a means to provide quantitative information for the effective management of VAW. Such views play a significant role in the reproduction of penality beyond the “neoliberalisation” of the involved feminist groups. Positing penality as a self-limited, democratic, technical, and human-rights-based tool allowed feminists to move the most problematic implications of criminalisation to the background, and even utilise penal reform to address economic inequality, as I confirm in the next section.

The Outcomes: Feminist Interventions in the 2014 Penal Code

Table 1 below condenses the main feminist interventions and their outcomes in the 2014 Penal Code. Various misdemeanours were “upgraded” to criminal offences, and “femicide”, an entirely new category, was introduced. By contrast, proposals to decriminalise abortion and criminalise “patrimonial violence” were unsuccessful.
Table 1

Main feminist interventions in the making of the 2014 Penal Code

Criminal offence

Proposal

Outcome

Violence against women and the nuclear family (domestic violence)

Convert various forms of domestic VAW (physical and emotional abuse) from misdemeanours to criminal offences

Successful creation of two new criminal categories: physical and psychological violence against women and the nuclear family

Patrimonial violence

Create the criminal offence of “patrimonial violence” as a form of domestic violence through which women’s access to money and other vital resources is restricted

Unsuccessful

Abortion

Decriminalise abortion when pregnancy results from rape

Unsuccessful

Femicide

Create the criminal offences of “femicide” and “feminicide” to tackle gender-based killings of women from both an individual and a state responsibility perspective

Successful creation of “femicide” as the killing of a woman for being a woman

“Feminicide” (which recognises state responsibility in women’s killings) was unsuccessful

Currently, abortion is a criminal offence in Ecuador with two exceptions: when the abortion is performed to save the life of the mother, and when pregnancy is the result of the rape of a “mentally incapacitated” woman

One offence that is particularly relevant to my argument is “patrimonial violence”, which had been identified in a government survey as a distinctive type of violence whereby the aggressor restricts a woman’s access to money and other vital resources (INEC 2012). The NGO-based movement thus proposed a new offence, which was well-received by the government-aligned lawmakers. Oficialista Gina Godoy circulated a document via mailing lists, describing patrimonial violence as “damaging, misplacing, destroying, controlling, robbing or retaining personal documents, patrimonial rights, financial resources, personal property or real estate which is shared by the nuclear family or partnership” (personal communication, September 18, 2012). Also, an email message disseminated by an NGO read: “[patrimonial violence], because it is not categorised as a criminal offence, almost always goes undetected, which naturalises it and contributes to perpetuate and maintain an unequal historical relationship between men and women” (personal communication, October 8, 2013). These descriptions suggest that penality was being considered instrumental to address economic inequality, in contrast with the governance and carceral feminist literature affirming that governance feminist proposals are generally distanced from social redistribution. However, the proposal was unsuccessful for reasons that remained unclear to most interviewees.

Albeit interviewees agreed on criminalising patrimonial violence, other topics caused divides. One was the “full” criminalisation of domestic violence (hitherto a misdemeanour), which would subject the offence to the ordinary penal process. While most participants thought that criminalisation was needed, there were controversies. NGOs insisted that VAW requires a special procedure and swift protective measures for survivors, which the ordinary penal code does not provide. In this scenario, NGO-based feminists were less inclined to invoke rights-based criminal law than their younger, government-aligned counterparts. For instance, feminist lawyer Anunziatta Valdez stated that the new Penal Code hindered the protection of women. When asked by a national newspaper to comment on the penal guarantees necessary to ensure due process, she replied: “there are social problems that cannot be treated with criteria such as the ones that the Penal Code attempts to impose, because they are the result of unequal power relations. Due process does not work here” (El Universo 2012, para 6). Like Valdez, many NGO-based feminists proposed to preserve the misdemeanour regulation rather than fully criminalising domestic violence. One working document, which circulated amongst activists and NGO staff, contended that VAW cannot be adequately regulated through an ordinary penal code:

[…] there are regulations such as those pertaining to underage offenders or to violence against women and the family, which have an eminently protective character […] and cannot be adapted to the integrative structure of the Penal Code, as this responds to a rigid model which requires the presence of a plaintiff and a defendant (various authors, personal communication, October 8, 2012).

NGOs also feared the loss of the immediate measures available under Act 103, whereby restraining orders could be effective instantly, even without a formal lawsuit. These concerns were also presented in the Minority Report to the National Assembly:

If the intention is to facilitate women’s access to justice, a penal procedure with the intervention of public prosecutors, judges and public defenders is clearly more difficult than the one that is today prescribed by Act 103. If a better access to protective measures is sought for, this will also be more difficult if a public prosecutor is to request them and a judge to grant them; today the intervention of the commissariats is immediate. We should also ask ourselves […] if the intention of those who file a complaint is to obtain the deprivation of liberty of their relatives or partners, or conversely, to have a tool that enables them to maintain a less unequal and violent relationship (Romo 2012).

The report stressed that incarcerating the offender is not likely a priority for violence survivors, which was backed up with data from the National Survey on Family Relations and Gender Violence Against Women, indicating that 88% of survivors do not intend to leave their abusive partner (INEC 2012). This was interpreted as a sign that most would not pursue incarceration. Also, in the experience of activists and NGO staff, imprisonment could worsen women’s situation, as it would, for instance, impede the offender from working and providing child support and other pensions.
The main divides between oficialistas and opositoras were eloquently depicted by opositora María Paula Romo:

[…] the women’s movement was not as enthusiastic about full penalisation […]. I think that there was a lot of awareness in the organisations that there was a setback in [relation to] what had been achieved with the [old] commissariats. […] And so the strongest proponents of penalisation, of criminalisation, of [domestic violence] not being a misdemeanour but a crime, were the assembly members who define themselves as feminists. This was not an agenda of the women’s organisations (personal communication, April 22, 2015).

Predictably, opositoras were unsatisfied when domestic violence was ultimately criminalised. Only physical violence was assigned a specialised procedure—when the resulting injuries cause less than 3 days of inability to work, otherwise they are treated as an ordinary offence. Remaining offences were legislated as common crimes under the ordinary process. According to testimonies, this resulted in women often being unable to access immediate protection, given that a longer procedure is required, and restraining orders cannot be issued ex parte. Since ordinary judges are obliged to observe penal guarantees and given that a complaint on its own does not undermine the presumption of innocence, judicial orders cannot be issued unless there are merits to presume that a crime has been committed, that judicial action is required to ensure the defendant’s appearance in court, and that the complainant is in “actual” danger.

Additional difficulties emerge from the concentration of judicial headquarters at urban centres and the type of evidence required by penal law. Unfortunately, psychological violence is regulated through a scale linking the “seriousness” of the offence to the number of days of inability that it causes. As a result, the crime is only configured when measurable damage is produced. While in Act 103 the violent action itself was considered illegitimate regardless of its effects, the 2014 Code established a result-driven criminal offence (delito de resultado), meaning that the behaviour as such is not criminal unless injuries are ostensible.

In practice, it is extremely difficult to demonstrate how much damage has been inflicted through psychological violence, particularly when, as the code establishes, the unit of measurement is the type and intensity of the therapy required for the survivor to fully recover. A specialised psychologist said: “the woman practically has to demonstrate that she is […] incapacitated to go on with her daily life, in order for [psychological violence] to be considered a crime” (personal communication, 13 February, 2015). Also, even if damage is quantified, it is difficult to show conclusively that it is linked to specific episodes of violence. Judges and attorneys often request to be informed of pre-existing conditions that could have impacted a person’s mental health other than domestic violence: “the difficulty is not to prove that there is psychological violence, but that the psychological impairment is a result of the violence”, the same participant said.

Furthermore, there are instances of physical violence which are not “severe” enough to cause measurable injury, and therefore fall out of the scope of protection. However, in practice, they may signal an escalation of violence which would require protective measures: the day to day mistreatments, hostility, insults, humiliations, and other forms of emotional abuse that Act 103 had addressed as misdemeanours, were now framed as full crimes and consequently subject to a longer procedure and to the damages scale. Importantly, within the penal system, reparations are subject to the quantification of injury and, while it is true that civil reparations (tort) could apply, this would further challenge the idea that criminalisation is necessary in the first place.

As we see, VAW is legally intelligible through discourses including statistics, medicine, and psychology. Quantification serves the purpose of determining sanctions, moving violence out of the realm of justice, into the realm of “truth” (Oksala 2013, 32–53). To qualify as an offence, psychological violence ought to be susceptible to assessment through “objective” indicators, based on the assumption that emotional harm can be measured by experts. Put in a different way, the inscription of psychological violence in the punitive logic of the code reaffirmed a positivistic approach to knowledge, which privileged measurability and scientific certainty, likely masking the political implications of expanding penality and, certainly, disregarding other possible approaches to gender justice.

Nearly all interviewees, including those who opposed the criminalisation of certain offences, equated non-penal alternatives to leaving women unprotected. Furthermore, suggesting that a non-penal solution be implemented was frequently considered inadmissible. Lawmaker Romo reminisced that she had proposed that “rapid exits” (the possibility of ending a criminal process early if the parties reach an agreement) be available for VAW cases. This caused outrage amongst militants of the women’s movement, as most adhere to the idea that settlements perpetuate power imbalances. NGO-based opositoras did question full criminalisation, but at the same time could not exclude criminal law from their narratives on counteracting VAW. Rather than looking for alternatives to penality, they posited it as susceptible to transformation. When asked about the reasons why criminalisation appears to be essential to protect of women’s rights, oficialista Rosana Alvarado hesitated but eventually affirmed:

[Criminal law] is an instrument. Yes, yes, that is… look, I was going to say… but without it, I mean, without this instrument, what do you have left? Given the advances of society, given the maturity with which we act as humanity, as a reflection I could say that we still do not have another path that is not criminal law to at least contribute to insist that certain conducts are felonies

(personal interview, April 21, 2015).

Since feminists, on the one hand, accept that a basic cornerstone of democratic legal systems is uniformity in the application of rules, but on the other hand, acknowledge the asymmetrical political effects of law, they are driven to justify their appeals to penality. There are various factors playing a role here, including the costs of legal reform and a broader equation of criminalisation with protecting rights. María Paula Romo formulated a thoughtful reflection in this sense:

[…] this demand of maximal penal intervention which we usually attribute to politicians, to representatives, to legislators… we cannot lose sight that it probably does not originate in their will, their conviction, but the pressure of the political game. […] It is not that right-wing parties are punitive; society is punitive, it is fascinated by the Penal Code, by punishment, they ask you for it

(personal communication, April 24, 2015).

Conclusion

Considering that penal expansion is problematic globally, and that part of such expansion is related to the criminalisation of gender-based violence, I agree with governance and carceral feminism literature about the urgency of addressing the role of feminism in strengthening the carceral state. I have shown, however, that paying attention to Latin America is crucial if we are to hold more nuanced conversations. New constitutions and left-leaning programmes in countries like Ecuador should be considered to understand how feminists position themselves within non-neoliberal contexts. This also lets us appraise a variety of factors informing feminist stances on criminalisation. My work in Ecuador reveals that economic redistribution is still a priority for many feminists, and that penality, rather than displacing this goal, has come to be articulated with it. This is largely because human rights framings, together with technical approaches to criminal law, are reproducing a punitivism that is masked as reconcilable with progressive agendas. Such representations facilitate the reaffirmation of criminal justice as adequate to counteract VAW from the standpoint of left-leaning actors, side-lining alternative approaches to gender justice at the same time, even when, as is the case with indigenous justice, they have been constitutionalised as part of the same emancipatory project.

Contemporary appeals to the constitutionalisation of criminal law, and the implementation of penal guarantees understood as progressive and democratic, are key within feminist narratives on criminalisation. While not all Ecuadorian feminists endorse penality to the same extent, most do not view it as an obstacle to reach economic redistribution and social justice. Although oficialistas did not explicitly link redistribution to criminalisation, they did justify the relegation of NGO demands as necessary to prioritise the former. In addition, most feminists proposed the criminalisation of patrimonial violence to tackle gender-based economic inequalities. In sum, what feminists propose is not only determined by their own understandings of violence and inequality, but also by the practicable fields of intelligibility available to articulate their demands. Rights-based penality is one of such fields in post-neoliberal Ecuador, which, together with scientificist discourses, has facilitated the reproduction of criminalisation as technically adequate, democratically necessary, and ethically justifiable.

Moreover, rights-based frameworks allow feminist actors to reconcile their sense of gender justice with penal coercion, and to resolve the adverse effects of criminalisation to operational issues which are deemed susceptible to improvement, presumably through more legal reform and more technical criteria. As a result, human rights and penality are still the main apparatuses used to address VAW, in detriment of non-carcereal alternatives, such as indigenous approaches to justice. These articulations allow progressive actors to frame law, even in its most coercive expression, as minimally involved in the reproduction of the inequality they seek to eliminate.

Footnotes

  1. 1.

    Clip available online at https://youtu.be/NTxUWQ2IE6s. Accessed 26 July 2018.

  2. 2.

    The term, coined by John Williamson in 1990, refers to free market measures settled amongst Latin American and U.S. policymakers. To critics of neoliberalism, it involved U.S. imposition of structural adjustment, reduced social service provision, and the opening up of capital markets (Bedford 2009; Serra et al. 2008, 3–13).

  3. 3.

    Some Latin American countries like Argentina, Bolivia, Brasil, Ecuador, Nicaragua, Uruguay and Venezuela, have been referred to as the “pink tide” (Kampwirth 2011), “new left”, or “post-neoliberal” (Borón 2003, 192), alluding to an approach that is not “socialist enough” to be considered “red”. Although some countries have recently moved back to right-leaning governments, the leftist programmes are still referred to as “socialism of the 21st century” (Dieterich 2009).

  4. 4.

    In this article, I use “penality”, to refer to the whole of the penal complex, including laws, procedures and sanctions (Howe 1994; Foucault 1977; Garland 1985).

  5. 5.

    Although Ecuador has lower incarceration rates than other Latin American countries, a 42% overpopulation has been estimated in prisons (El Telégrafo 2017). In addition, the rates of individuals imprisoned for particular crimes, such as drug trafficking doubled during 2017 alone (El Comercio 2017).

  6. 6.

    Contemporary Andean thought is syncretic and presented in diverse ways (Estermann 1998). This article refers the concepts as they were incorporated into the 2008 Constitution.

  7. 7.

    For example, the Beijing processes are indicative of the incorporation of Latin American feminists to international agencies and transnational NGOs. Also, in 1994, the OAS adopted the first VAW international treaty in the world: the Convention on the Prevention, Punishment and Eradication of Violence Against Women, known as “Belem Do Pará Convention”. Most Latin American laws on VAW resort to Belem do Para as a legal and conceptual foundation.

  8. 8.

    Specialised Laws on domestic violence were enacted in Peru in 1993 and 1997; Chile and Argentina in 1994; Bolivia in 1995, Colombia, Costa Rica, El Salvador, Guatemala and Mexico in 1996; and Venezuela in 1998 (Wilson 2013, 3–18).

  9. 9.

    Development is defined as “the organised, sustainable and dynamic group of political, socio-cultural and environmental systems which underpin the achievement of the good living, the sumak kawsay” (Constitución de la República del Ecuador, Art. 275).

  10. 10.

    This term, which translates approximately into “historical woman”, was used by most interviewees to refer to veteran feminist activists.

Notes

Acknowledgements

I wish to thank Dr. Katie Cruz, Dr. Arturo Sánchez García, Dr. Anne Carr, Professor Aziza Ahmed, Dr. Sebastián López Hidalgo, and two anonymous reviewers for their insightful comments on earlier versions of this article. I am always grateful to Professor Kate Bedford for her continued guidance and support. All errors remain my own.

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Authors and Affiliations

  1. 1.Universidad del AzuayCuencaEcuador

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