Criminalising violence against women : feminism, penality, and rights in post neoliberal Ecuador

• Main Author: Tapia Tapia, Silvana Cristina
• Other Authors: Bedford, Kate
• Published: University of Kent 2017
• Subjects: 986.607
• Online Access: https://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.721642

This thesis asks how penality, understood as the whole of the penal complex, with its laws, procedures, and sanctions, has become central to feminist strategies to counteract violence against women (VAW) in Ecuador. A new penal code came into force in 2014, criminalising some forms of domestic VAW, which had thus far been treated as misdemeanours, and introducing the new crime of "femicide". The thesis argues that human rights discourses have played a crucial role in bolstering penality by presenting criminalisation as an essential component of human rights protection. Feminist networks resort to a "rights-based penality" to legitimise criminalisation processes and to frame VAW as a human rights issue to which penalisation is the self-evident response. While Western literature has associated penal expansion with neoliberal globalisation, and the emergence of a "carceral feminism" with the side-lining of social redistribution in feminist agendas, Ecuador's 2008 Constitution explicitly challenges neoliberal approaches to wellbeing and development, and incorporates indigenous relational conceptions of justice. In view of this, considering that socio-legal research is limited in the country, this thesis employs a multi-method qualitative approach, including analyses of discourses within historical and current legal documents, and interviews of Ecuadorian feminists who participated in penal reform processes. The findings show that rights-based penality has become a universalised field of intelligibility to interpret and express the wrongness of VAW. Human rights mask the colonial continuities that travel through penal discourses, displacing indigenous understandings of justice and subjectivity, which have a potential to disrupt hegemonic approaches to gender. Rights-based penality also reframes feminist politicised conceptualisations of VAW and narrows our possibilities to imagine gender justice outside penality. In addition, by complicating legal procedures, the penal system is hindering access to justice for violence survivors on the ground, particularly marginalised women. Feminist strategies are constrained by dynamics whereby legal achievements come at the cost of tolerating exclusionary representations of gender, race, and the family, while the legal protection obtained in return is limited. More broadly, this thesis shows that challenging neoliberalism and implementing a redistributive programme has not sufficed to displace penality and coloniality, exposing how representations of human rights can remain reliant on penal expansion beyond neoliberal policies. Interrogating the universality of human rights, acknowledging the colonial legacy of penal institutions, and recognising the effects of penality on women's access to justice could enable an exploration of indigenous cosmovisions to propose non-hegemonic strategies to counteract gendered violence.