Feminism and the Power of Law (Sociology of Law and Crime)
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After introducing the overarching questions, Professor Kotiswaran detailed the development of the anti-trafficking transnational legal order laying particular emphasis on the seminal United Nations Convention against Transnational Organized Crime and the Protocol to Prevent, Supress and Punish Trafficking in Persons, especially Women and Children Palermo She discerned the development of the legal order as manifesting through three key stages. From onwards, the third phase emerged featuring the explicit framing of legal interventions through the lens of slavery and forced labour.
Here, Professor Kotiswaran emphasized the importance of the definitions and presumptions of trafficking in shaping the regulatory pathways adopted. She also disentangled and defined three unique approaches, namely: the criminal justice approach, the human rights approach and the labour approach. However, despite the prolific development of a trafficking legal order, Professor Kotiswaran emphasized its poor institutionalisation by reference to the abysmal rates of convictions under anti-trafficking law.
She then proceeded to analyse the potent nexus between trafficking and a crack-down on sex work and how this maintains the legacy of sex work exceptionalism within the international anti-trafficking legal framework. However, she argued that within the socioeconomic and political edifice of the global south, a fuller account of the transnational mullering of anti-trafficking discourse is necessitated.
To this end, she began to shed light on the Indian experience. Governance feminism conceptualises the permeability of feminists and feminist ideas into the state and state-like powers. She equally examined the role of neo-liberalism and late capitalism in sustaining anti-trafficking discourses in the global south. Whilst Bernstein identifies neo-liberal capitalist policies as inducing a retreat of the welfare state in the western context, Professor Kotiswaran found an opposing expansion of welfare within the Indian context. She then examined the materialist, Marxist and radical feminist schools of thought underpinning their organisation.
Professor Kotiswaran considered the interplay between these two constituencies as creating a unique version of anti-trafficking discourse. Professor Kotiswaran also noted how the partnership of neo-liberal abolitionist groups with the National Network for Sex Workers resulted in a stand-alone trafficking offence in the Indian Penal Code. She equally commented on the rape and death of Jyoti Pandey in Delhi as lobbying opportunity for neo-liberal abolitionist groups. Professor Kotiswaran then turned to examine the Trafficking Bill which adopts a draconian criminal justice approach to trafficking whilst failing to repeal anti-sex work law.
She held that this contradictory hybrid position reflects the wider feminist struggle to embrace the contradiction of abolishing the system of institutional prostitution, whilst supporting the rights of sex workers. She argued that this feminist polarisation and ambivalence has impeded the total abolition of sex work through criminal law whilst creating a policy vacuum that neo-liberal abolitionists readily inhabit. Ultimately, she emphasized the impossibility of reconciling and operationalising this hybrid paradigm in policy terms. The seminar concluded with a reflection on the relationship between the national and the domestic.
The law recognizes two types of sexual harassment.
The typical sexual harassment plaintiff is female; the typical defendant is male. A defendant who pursues a co-worker after she has rebuffed him may well believe that his behavior is reasonable; after all, he is acting out the plot of countless works of fiction, drama, and comedy, and may even have seen this courtship technique work in real life. A defendant who tells dirty jokes or makes suggestive remarks may argue that the woman who complains about this behavior is unreasonably sensitive.
Brady , The reasonable woman doctrine is not without its defects and dangers. First, the concept conflates gender and role. As women gain power in the workplace, it is likely that some of them, like some men, will abuse their power. Asking what a reasonable woman might do will only confuse matters if aggressor and victim are the same sex Oncale v Sundowner Offshore Services A second difficulty with a reasonable woman rule is that it could do real damage if applied in areas of law that are not overtly gender-sensitive.
A jury in a negligence case, for example, might expect more caution and foresight from a p. The concept of the reasonable person has found yet another home in the area of domestic violence. Elizabeth Schneider points out that legal discourse has long been stuck on the question of why the battered women did not end the abusive relationship. Feminist scholars have had much success in changing this official behavior. Walker argued that long-term abuse taught many women that they were helpless to change their situation.
But the battered woman syndrome defense has won some acquittals in trials of women who kill their abusers, even though it applies the idea of learned helplessness to someone who has displayed considerable aggression. These two doctrines do not mesh well; the first presumes a rational actor while the latter presumes the opposite. Efforts to protect oneself, others, or property have long been recognized as exculpating factors in criminal cases. A defendant in a homicide case who pleads self-defense must convince the factfinder s that he or she perceived imminent danger of serious injury or death and that this belief was reasonable in the circumstances.
Juries have been known to give defendants considerable latitude under the imminent danger rule. For instance, both a Louisiana man who fatally shot a stranger who rang his doorbell by mistake and a Virginia man who killed a neighbor who swore at him during an altercation were acquitted Baer , —8. Feminists have questioned whether the imminent danger requirement is as neutral as it looks. The rule would lead us to expect a woman whose husband had abused her on numerous occasions to be acquitted after she killed him during yet another violent episode, even without recourse to the battered woman syndrome.
When a woman was nonetheless convicted in such a case, the New Jersey Supreme Court ordered a new trial that would include testimony about BWS to show that that the woman could reasonably fear that her life was in danger during the episode State v. Kelly But most battered women who kill do not do so during an attack, and BWS may have particular significance in those types of cases. The imminent danger rule that can respond so flexibly to male experience is unresponsive to their experience.
The battered woman syndrome defense asks factfinders to consider whether the defendant might overreact to a perceived threat because her reasoning capacity is defective, in the same way that an insanity plea makes comparable demands. But, while the logic of the BWS defense is problematic, the defense has entered the legal repertoire. Legal doctrine emerges from human experience. When women were excluded from the legal enterprise, man-made law was just that.
The growth of feminist jurisprudence has coincided with the entry of more and more women into the lawyering, law-making, and judging professions. The two groups of scholars and activists overlap, and each activity has infiltrated and influenced the other. Both scholars and practitioners know that much work remains for later generations to do.
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Feminist discourse, moral values, and the law: a conversation. Buffalo Law Review , 11— Feminist Discourse Moral values, and the law—a conversation.
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Centre of Law and Society - Research - Cardiff University
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