Feminism and sexual criminal law: A perspective on rethinking judicial practices
- victimepasseule
- Oct 2, 2023
- 7 min read
Updated: Nov 22, 2024
In a recent discussion with Cécile Greset, a research associate and doctoral candidate at the Institute of Gender Studies in Geneva, we delved into topics of feminism, sexual violence, and criminal law.
The idea for our conversation emerged from questions surrounding the call to boycott artists accused of sexual violence and the tendency of some to assume that victims are lying, even when many report similar experiences, rather than see a public figure as an aggressor…
The myth of women fabricating accusations to frame men for sexual violence is a longstanding gender stereotype. Manipulation is a characteristic often attributed to women: the assumption is that they would use their bodies or any means to get what they want, or, spurned by unrequited love, they would seek revenge by destroying men. When several victims speak out against a well-known figure, this can sometimes bolster the idea of a conspiracy in the public imagination, whereas it should actually reinforce credibility by revealing a behavioural pattern on the part of the aggressor. In reality, false accusations are extremely rare.
The myth of women fabricating accusations to frame men for sexual violence is a longstanding gender stereotype. In reality, false accusations are extremely rare.
Regarding artists accused of sexual violence and feminist movements calling for boycotts, it remains a delicate matter. For those who insist on the presumption of innocence, this, too, is problematic because, in cases of sexual violence, this principle can neutralise criminal proceedings, leaving things at a “move along, there’s nothing to see here” stance. The media’s coverage of cases involving celebrities is complex and not always helpful, as by focusing on a particular situation with specific traits, the structural aspect of these kinds of violence is left out, which is precisely what needs addressing.
As for the question “Can we separate the man from the artist?”, this debate doesn’t particularly interest me. For me, these last elements are just symptomatic of the issue we, as a society, face in not satisfactorily addressing sexist violence and its impact. It highlights our inability to propose solutions other than punitive or exclusionary measures.
And indeed, the feminist perspective helps to think through this. But first, what is feminism?
In my view, feminism is above all a political stance, a way of seeing the world and envisioning society. It is a critical stance on how society functions, which, for me, is not just about defending women’s interests but human and the living world’s interests overall. It’s a critical thought process aimed at improving everyone’s position within our society. And in that sense, it helps me in my research to (re)think Swiss sexual criminal law, its institutions, and its practices. But there is not just one feminism; there are multiple feminisms, and others may offer different definitions.
Feminism is a critical stance on how society functions. It is not just about defending women’s interests but human and the living world’s interests overall.
Where feminists may converge is in recognising that we live in a society with structural inequalities, where individuals are bound by power dynamics and domination, with a certain minority benefitting to the detriment of a much larger segment of the population, of which women are a significant part.
Why are some women not feminists?
As I said, feminism is a political stance. Some women simply do not situate themselves in this realm; they don’t see a benefit in taking a political stance or simply lack the time, having other priorities. Others may have a different political framework.
Still others do not share this vision of structural inequalities and power relations that shape and rank our interactions. Some women do not feel they are particularly disadvantaged or discriminated against for being women. I am thinking particularly of white women from privileged social classes and/or who hold high-ranking positions in society. Once there is agreement on the presence of inequalities and the need for change, they may feel threatened and oppose a discourse they fear may impinge on their own privileges.
We live in a society with structural inequalities, where individuals are bound by power dynamics and domination, with a certain minority benefitting to the detriment of a much larger segment of the population, of which women are a significant part.
Feminists embraced the #MeToo movement and the issue of violence against women. Will improved recognition of violence and judicial evolution come through feminists?
Feminists have long fought for this cause, advocating for improved support for violence against women, well before #MeToo. But even here, there are different positions.
Some feminists consider the current justice system imperfect but generally functional, or at least functioning as best it can, so nothing needs changing. Others believe there are genuine issues and that justice should be reformed, including the law, in several respects. Still others think that criminal justice – as part of state organisation, which itself structures inequalities and power dynamics – perpetuates structural violence and inequality, making it pointless to attempt reform or demand justice from it. Personally, I believe in the need to act on and rethink justice practices.
But yes, I believe that a better approach to addressing sexist violence through law will come thanks to feminists.
The revision of sexual violence legislation adopted in Switzerland in spring 2023 (with the “no means no” model) aims to improve the handling of these cases, but it remains criticised by some feminists. What is your view on this?
This reform was debated through a particular lens. Some points were addressed, like the gender-specific definition of rape, while others, such as the structural nature of violence rooted in power and domination, were not addressed in the reform. The discussion focused on consent without considering the context in which consent is given. Furthermore, the focus was on the texts of the law, without attempting to understand the practices of criminal authorities in this area. Regardless of how many legislative changes are made, as long as practices remain unchanged, nothing will change.
I believe that a better approach to addressing sexist violence through law will come thanks to feminists.
It is impossible to create legislation that takes into account the specifics of every situation in its formulation, which is why the interpretation of the law, particularly by magistrates, plays a fundamental role in the legal system. The role of the law is ultimately quite limited.
With current legislation, for instance, the notion of coercion is interpreted very narrowly, although it could be viewed more broadly. If there were no blows or threats of blows at the time of the sexual assault, they won’t be considered part of the chain of events needed to legally define sexual violence. In a relationship, this is a very restrictive interpretation of violence in the exercise of coercion.
Moreover, in this reform, the state of shock was included as a compromise, but this was already accounted for in practice. However, what certainly isn’t accounted for are situations in which women (I refer to women because complainants are overwhelmingly women) remain still or let it happen, not because they are in shock but because they would rather suffer a sexual assault than physical violence. They choose physical integrity over sexual integrity. Or situations where women face financial and/or administrative and/or familial precarity. These forms of violence exerted on women remain unintelligible to the justice system. The reform does nothing to address this, especially since this wasn’t even a topic of debate in federal chambers. They discussed psychology but not social issues. Individual rather than collective issues.
Sexual interactions are complex situations for which criminal justice is not equipped. Its current workings cannot, in my view, accommodate this complexity.
In federal chambers, they discussed psychology but not social issues, individual rather than collective issues.
What role do feminist movements have in helping transform criminal justice?
With a political stance focused particularly on discrimination, power dynamics, and violence against women (and not exclusively women), various feminist perspectives bring forth an entire body of knowledge and critical approaches that seek to raise awareness, explain how law functions, and identify what could be modified or transformed.
While the legislative process is an important and symbolically significant tool that requires action, societal transformation won’t come solely through law. Moreover, certain feminist movements advocate for action outside the justice system, working collectively through tools such as transformative justice, mediation, and talking circles, which address the needs of victims and focus on transforming the individuals involved. Indeed, criminal justice may not be a very effective or sufficient form of reparation for all victims.
As a feminist, what are your avenues for reflection?
I personally believe that approaches like transformative justice (outside the criminal justice system) or even restorative justice (establishing a dialogue between victims and perpetrators, where the goal is not necessarily to have a victim talk directly with their own aggressor, but with an aggressor), talking circles, and similar processes are excellent ways to help people understand what happened and to restore a broken bond, mend a damaged relationship, or simply allow for separation. The goal is not necessarily to reconcile victims and perpetrators or to imply that violence stems from co-production between victims and perpetrators but rather to employ other means than punishment or incarceration, which seem insufficient in addressing violence against women.
Criminal justice may not be a very effective or sufficient form of reparation for all victims.
For a perpetrator of violence, these processes seem more constructive, allowing them to recognise their responsibility, than a criminal sentence, which they might not even comprehend. It’s also worth noting that in the criminal justice system, as it is structured, everyone assumes a role. The perpetrator adopts a defensive stance and has every incentive to deny the accusations, even if they sense or know they did something wrong. Depending on the circumstances, denial can be a safer position than admitting guilt, especially with legal counsel. In a transformative justice setting, for example, responsibility is encouraged, and problematic behaviours can be more easily acknowledged. That said, this also raises many questions regarding the time victims must invest, how to proceed if the perpetrator denies everything, the potential for re-victimisation, etc.
Conflicts and asymmetrical power relations will always exist. Whenever we encounter otherness, conflicts may arise, which is not negative if managed with care. Otherwise, it can only lead to violence. Unfortunately, we are ill-equipped to handle this healthily and calmly, struggling to manage conflicts and to embrace and nurture otherness. People are increasingly adopting polarised positions, which generates more violence. Conflicts are part of life. As I mentioned, encountering otherness, whether human, animal, or otherwise, means confronting other values, thoughts, and ways of functioning, which is challenging. But it is enriching; it brings movement, it is even essential to life, and it needs to be managed positively.
Much more mediation is needed in schools. Learning early to handle conflict positively and transform violence is essential.
I also believe that much more mediation is needed in schools. Learning early to handle conflict positively and transform violence is essential. Sex education courses are also very important, provided they are constructive and not limiting, though this seems challenging to implement.
In criminal justice, the implementation of tools and the training of magistrates in critical perspectives on law, such as feminist or gender and sexuality studies, to help practitioners identify their biases, reflect on them, and adopt a critical view of their practices, can also have a major impact.
