Sexuality Policy Watch

The problem is ‘criminal law’

 by Sonia Corrêa

The discourses that legitimize punitive power, as established in the middle Ages, are in full force. This is when criminology was born as an autonomous field of knowledge. This structure remains practically unchanged. It reappears whenever punitive power aims at getting rid of limits” (Raul Eugenio Zaffaroni, 2011)

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Five years ago, the Argentinean progressive online newspaper Página 12 published a series of eighteen Special Supplements, titled “The Criminal Question”, which presented an extensive historical and conceptual review of the punitive power of the state, as translated into criminal law. The editor of the supplements was Raul Eugenio Zaffaroni, one of the most acknowledged critical thinkers of criminal law in the world  and then a Judge of the country’s Supreme Court. This journalistic effort is perhaps the best piece of critical thinking about Criminal Law translated into popular language. Though available online, unfortunately it is just available in Spanish.

I have opted for taking this abstract road, so to speak, in my presentation today because – while recognizing the relevance of practical and urgent matters of political mobilizing, damage control and changing laws — I am also convinced that our aspirations in regard to gender, reproductive, sexuality and erotic justice require us to transform our ways of thinking, or better said, revise our epistemologies, including in what concerns dominant and common sense visions of what is criminal law. The reflections that follow are deeply inspired by the Página 12 Supplements and therefore developed from a Latin American critical perspective. This may not adequately reflect transnational heterogeneity in this domain, but it is still compelling in terms of historical legacies that affect us all, North and South of the Equator. I have structured this intervention in four blocks:

  • A quick end imperfect bird’s eye view of the long history of criminal laws and state punitive power
  • A quick retracing of the trajectory of criminal laws in my own country,
  • A quick review of contemporary trends that amplify and intensify the resource to the state punitive power
  • Few questions and interrogations

Archeological efforts that delve back into the history of criminal law reveals that ‘punitive power’ is established and expanded whenever societies become more hierarchal and asymmetrical, and the exercise power becomes vertical. In the Western trajectory the most compelling example is Rome where this shift happened when the polity transitioned from the republic to the empire. The history shows that the expansion of punitive power was instrumental to the subsequent Roman imperial expansion.

The Roman legacy is crucial in the Western history of criminal law because it is at the origin of the re-construction of state punitive power in medieval law, in the course of the 11th and 12th centuries. One central feature of this re-organization of criminal law was the creation of the Catholic Inquisition and its brutal rules of investigation and punishment. In the Iberian Peninsula, this re-organization of criminal law was also vital for the condensation of absolutist power that preceded the 15th century Spanish and Portuguese colonial expansion. Three centuries later Roman Panel Codes would also inspire the modern parameters of criminal law that consolidated in between the late 18th and mid 19th century in Europe, which –– coincidently enough– was also a moment of imperial expansion, (the famous 1810 Napoleonic Code and its long standing influence beyond European boundaries is perhaps the best example of this reconfiguration).

It is also worth noting that, at least in the European tradition, the state power to punish derives directly from deeply ingrained imaginary conceptions of ‘divine’ law, punishment, guilt, and forgiveness. Until the 12th century when penal laws were re-codified, judgment was by ordeal: the subject was put to a painful proof and if she or he survived this was the proof of her or his innocence (very few survived as we know). With the Inquisition, ordeal was substituted by interrogation and torture performed by male priests as God’s representative on earth. The transition to modernity contested the divine origin of political power and consequently transferred the power to punish (or the monopoly of violence) to ‘secular’ absolutist states.   Even so, the core elements of the punitive powers have been preserved:

  • In the exercise of this peculiar form of power, a mighty entity — the chief, the king, the priest, the State — confiscates the voice and decision of those who have been victimized by the act of another subject, and, in their place, judge and punish the perpetrator. This dislocation, although justified in terms of the neutrality of state law, among other effects, evacuates the possibility for the conflict to be resolved otherwise by the parties involved.
  • Across Western history criminal law has systematically created a plethora of figures of “enemies” of the social order: the heretics, the witches, the traitors, the religious dissidents, the infidels, the rebels, the sodomites, women who abort, the sellers of sex, et caeterva.
  • As noted above the concepts and procedures of criminal justice systems still retain deep and entrenched theocratic imprints.

It is also worth observing that from the second half of the 19th century onwards criminal justice would be strongly influenced by the new pseudo science of criminology, which added to it new ideological layers of exclusion, coercion and disciplining. The figures of crime then established were grounded on blatantly biased racial, biological psychiatric assumptions, whose traces remain palpable today in most domains pertaining to sexuality and rights. Most principally, criminal law was then re-constructed as one key instrument of social pedagogy as the best tool possible to protect the social order.

This historical retracing is highly sketchy. A fuller and more precise retelling of the history of criminal law from a transnational perspective would entail much more. For example, it requires us to examine how these European threads have been transported and translated to other contexts through the colonial expansion, and how metropolitan scaffolds were superimposed to and overlapped with other structures of punishment. Though much variance exists, my hypothesis is that everywhere, the centrality of criminal law, in postcolonial realities cannot be circumvented. Firstly, because it is inherent to the core structure of state–nation polity models that became universal in the 20th century. But also because of the longevity criminal laws and the scale of its political appeal across all sectors of society.

Let me look at my own country, Brazil, as an example. Between the 16th and 19th century the Iberian criminal law, established in the 12th century with strong canonical and Inquisitorial imprints, was the backbone of the colonial juridical system. To illustrate what this meant suffice to recall that when a human settlement gained the formal status of a village recognized by the Portuguese crown, a trunk of punishment was installed in its main square, in front of the church. After independence, in 1822, we had three penal codes, the first in 1830 and second in 1890, long before the first civil code was promulgated in 1916. Significantly enough, the 1890 Code approved after the transition from a monarchical to a republican regime was promulgated before the Constitutional reform. Our last penal code reform was performed in 1940 during the Vargas dictatorship. Two of its key definitions in relation to our realms of concern remain intact: the crimes of abortion (except in the cases of rape and women’s life risk) and of transmission of contagious diseases. The code as it is does not criminalize soliciting, but imposes penalties on a variety of acts interpreted as facilitation or exploitation of prostitution.

Then,  moving the lenses towards the contemporary era, over the last thirty to forty years, as the world has been by the forces of late capitalism, welfare states– wherever they existed – have contracted while, at the same time, ideologies favoring the expansion of state’s punitive powers expanded their reach almost everywhere. These ideologies mobilized new social perceptions on risk and vulnerability as well as calls for increased security measures: a ‘securitization state’ (or police state) whose central premises are anchored in the logic of “law and order” has then taken form. The   concurrent collapse of State Socialism did not help much as it has not engendered on the left end of political spectra the necessary critical review and repudiation of the totalitarian perversions of these regimes. This moment was also when doctrines of securitization and principles of risk management began to applied to many other dimensions of life — human security, food safety and even HIV and AIDS. The “global war on terror” waged from 2001 onwards would further expand and “legitimize” states’ justifications for surveillance, control and punishment in detriment of the respect to consecrated constitutional rights and human rights.

These effects are palpable everywhere today. Once again giving Brazil as an illustration is quite telling that after 25 years of military dictatorship, as the country democratized, a constitutional reform has been completed that is strongly grounded in human rights premises of equality, freedom, privacy and justice. However the same constitutional text includes a whole section that grant constitutional status to the punishment of so called heinous crimes and the list of these crimes includes rape. Since then, under the impact of the structural trends above mentioned hyper-criminalization continued expanding. One key factor explaining this expansion is the wide and stringent criminal law rationale of the war on drugs. This means that whatever may be the discussion on decriminalization in Latin American contexts — and Brazil in particular — drug decriminalization is critical.

Another key factor has been the growth of regressive forces – both secular and religious, both Catholic and Evangelicals – that are now steering the conservative restoration underway. These forces are behind the proliferation, in the last ten years, of hyper criminalizing law provisions in all domains: drug policy, age of criminal responsibility, abortion, HIV-aids transmission, sex work including criminalization of clients. However, we must also remind that child rights advocates, feminists, LGBT activists and other progressive sectors have also added water to this mill by demanding the hyper- criminalization of a wide range of topics, such children rights, gender based violence (domestic violence and feminicide) and the criminalization of homophobia. Not to mention the increasing open call by feminist sectors of criminalization of clients of commercial sex.

Here we enter the domain of the double bind of the criminal justice system as both a source of human rights violations and their supposed antidote. This is the complex muddy zone of claims made by us – sexual and reproductive rights activists – that push human rights beyond the state as perpetrator, to consider the states’ responsibility to provide an effective remedy, including as regards private actors who commit acts of violence, in particular sexual violence, through the resource of criminal law, by there fueling the expansion of states’ punitive capacities and its tutelary and arbitrary power.

My first question to us all is therefore if the criminal justice apparatus can effectively uphold the protection of fundamental rights? Or on the contrary, the option for a criminalizing legal route contradicts the protection of fundamental rights of the individuals and communities? A second question is: can we continue pushing for the easy resource to criminal law to redress gender sexual and reproductive injustices without taking into account the detrimental effects of criminalization including in what concerns the geometric growth of incarceration worldwide? In particular because criminal law and incarceration policies are highly selective: the large majority of prison inmates are from the poorer, marginalized and discriminated sectors of any society.

Or to say it differently, those of us advocating for gender, reproductive, sexual and erotic justice are challenged to search for more effective and less harmful paths address and redress violations. The option for hyper criminalization implies adding water to the long history of punitive power, implies additional selective injustice, stigmatization, deprivation of freedom. Criminal repression, whatever its direction, will not overcome violence, inequality, prejudice or discrimination, if nothing else because these effects are, since ever, inherent to the expansion of the punitive power of states. While this may sound un-realistic or despairingly utopic, I want to suggest that we should dare to seriously engage with critical thinking around minimal criminal justice systems or ever go further, as imagine the possibility of societies without prisons.

Image: Cartoon published in the first Pagina 12 Special Supplement on  “The Criminal Question” 

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