Indigenous Knowledge and Biopiracy: The Need for a New System of International Intellectual Property Rights Law

By Riley Currie

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Abstract

Indigenous peoples around the world have always held a connection to and rich knowledge about the land, despite ongoing colonial actions against their sovereignty and land rights. However, individual and corporate actors have continued to exploit some of the most biologically and culturally diverse places on the planet, harming Indigenous peoples via acts of biocolonialism and biopiracy. Biocolonialism and biopiracy are not only gross violations of intellectual property rights, but also pose an existential threat to Indigenous peoples and their knowledge. The protection of Indigenous intellectual property must be reframed as an international human rights issue. This requires a reexamination of intellectual property rights laws and their implementation internationally. Centuries of colonial violence cannot be undone, but the protection of Indigenous peoples and knowledge at the international level is a necessary remedy.

Keywords

international law, Indigenous rights, intellectual property, Indigenous knowledge, traditional knowledge, biocolonialism, biopiracy, Convention on Biological Diversity, United Nations Declaration on the Rights of Indigenous Peoples

“Wealth is not the fruit of labor but the result of organized, protected robbery.”

– Frantz Fanon, The Wretched of the Earth

Introduction

Indigenous peoples possess a common connection to and wealth of knowledge about their land, despite ongoing colonial violence and appropriation. As conversations about human rights, sustainability, and climate change rise to prominence in international discussion, the need to protect Indigenous peoples and Indigenous knowledge in the international legal system cannot be overlooked.

Unfortunately, the existing international intellectual property rights regime falls short in its attempts to protect Indigenous peoples and knowledge. Persistent misconceptions about the nature of Indigenous knowledge, including the idea that there is an inherent disconnect between “strictly definition-based” laws and “definition-defying” Indigenous knowledge, hinder the implementation of effective protection. Intellectual property rights for Indigenous people are also often perceived as legally entirely separate from land rights and land justice efforts. These misconceptions only divert attention away from the principle failure of the system: intellectual property laws, which rely on the Euro-American legal concepts of innovation, discovery, products, and processes, limit Indigenous intellectual property rights and allow opportunities for biopiracy and misappropriation. These holes in the current system constitute a violation of rights and demand a reexamination of intellectual property laws and their effects on Indigenous communities around the world.

Due to the complexity of the intersection of Indigenous knowledge and international intellectual property laws, this paper will take a preliminary look at the relationship between Indigenous knowledge and intellectual property rights, as well as the existing laws and their international implementations. The investigation of this relationship and the legal tension will concern two specific precedents which highlight the overdue need to preserve and protect Indigenous knowledge at the international level: the biopiracy of ayahuasca, a vine native to the Amazon Basin, and the biocolonialism of the University of Hawai’i’s kalo patents. 

Indigenous Knowledge and Intellectual Property Rights

In general terms, Indigenous knowledge can be defined as “the system of knowledge developed and maintained by Indigenous and local communities and transmitted from generation to generation” (Stoianoff & Wright, 2018, pp. 75). According to a report by the World Intellectual Property Organization (WIPO; 2000), traditional knowledge refers to “tradition-based literary, artistic or scientific works; performances; inventions; scientific discoveries; designs; marks, names and symbols; undisclosed information; and all other tradition-based innovations and creations” (p. 25). Here, “tradition-based” refers to things which “have generally been transmitted from generation to generation; are generally regarded as pertaining to a particular people or its territory; and are constantly evolving in response to a changing environment” (World Intellectual Property Organization, 2000, p. 25). 

According to the World Trade Organization (n.d.), intellectual property rights “are the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time.” These rights are divided into two categories: copyright and rights related to copyright, and industrial property. Copyright refers to literary, artistic, performance, sound production, and broadcasting properties, with the “main social purpose . . . to encourage and reward creative work” (copyright section, para. 2). Industrial property, on the other hand, refers to two subcategories: properties “characterized as the protection of distinctive signs, in particular trademarks . . . and geographical indications” (industrial property section, bullet 1, para. 1) and properties “protected . . . to stimulate innovation, design and the creation of technology” (industrial property section, bullet 2, para. 1). 

Biological properties in relation to Indigenous knowledge primarily fall under the first industrial property subcategory, as such properties “[originate] in a place where a given characteristic . . . is essentially attributable to its geographical origin” (industrial property section, bullet 1, para. 1). In general, intellectual property rights intend to simultaneously protect creators and consumers, ensuring fair use, but they rely on Euro-American concepts of property and ownership. Indigenous intellectual property is thus often perceived as incompatible with existing intellectual property rights and protections because contemporary systems of ownership (and ownership of rights, in particular) encourage the commodification and commercialization of knowledge and resources.

Indigenous intellectual property is thus often perceived as incompatible with existing intellectual property rights and protections because contemporary systems of ownership (and ownership of rights, in particular) encourage the commodification and commercialization of knowledge and resources.

The concept of “ownership” stems from the Euro-American concept of private property and, thus, private ownership; so the conception and the legal punishment of theft relies on the violation of private property. In the case of intellectual property rights, this violation is traditionally plagiarism or unfair use. Such a conceptualization of ownership, especially in regard to land, resources, and knowledge ownership, conflicts with those of many Indigenous communities. For Indigenous peoples around the world, the relationship between the people and the land is not one of owner and property. Indigenous knowledge is heavily rooted in communal land and a cultural connection to a place (Drahos & Frankel, 2012). For instance, the Māori people in New Zealand maintain a deep connection to the land which informs all facets of Māori culture. In a 2011 report, the New Zealand Waitangi Tribunal recognized that mātauranga Māori (Māori knowledge) “in its intangible values [is] intimately connected to Māori relationship with the land and the environment” (Drahos & Frankel, 2012, p. 2). According to the report:

Māori culture seeks to reflect rather than dominate its surroundings. . . . [T]he relationship between humans and taonga species is a definer of Māori culture itself. It is a preoccupation of the body of distinctive Māori knowledge that today we call mātauranga Māori. (as cited in Drahos & Frankel, 2012, p. 2)

Due to this difference in conceptual understanding of land, resources, and related knowledge, current international intellectual rights regimes will fail to effectively protect Indigenous knowledge.

Legal Instruments and History

International bodies have attempted to implement legal instruments to protect Indigenous intellectual property rights, the most prominent being the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the Convention on Biological Diversity (CBD). 

UNDRIP’s adoption began in 1982 when the United Nations Economic and Social Council (ECOSOC) established the Working Group on Indigenous Populations, intending to establish a set of standards that would protect Indigenous people (New Zealand Human Rights Commission, n.d.; Historical Overview, n.d.). The group submitted a first draft of a declaration on the rights of Indigenous peoples to the Sub-Commission on the Prevention of Discrimination and Protection of Minorities, which was approved in 1994. After some revision, the United Nations Human Rights Council adopted the Declaration on the Rights of Indigenous Peoples in June 2006. “[A] comprehensive international human rights document on the rights of Indigenous peoples, [it] sets out the minimum standards for the survival, dignity, wellbeing, and rights of the world’s Indigenous peoples” (New Zealand Human Rights Commission, n.d.). In September 2007, a majority of 144 countries adopted UNDRIP. Eleven countries abstained, and four, notably, voted against UNDRIP: Australia, Canada, New Zealand, and the United States (though all four now share their support, along with Colombia and Samoa, two countries that originally abstained; Historical Overview, n.d.). 

The Convention on Biological Diversity (CBD) went into effect in December 1993 (Introduction, 2012). The main objectives included “the conservation of biological diversity; the sustainable use of its components; and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources . . . by appropriate access and . . . appropriate transfer of relevant technologies” (Introduction, 2012). The CBD specifies the importance of recognizing Indigenous knowledge and its unique value regarding biodiversity and conservation. Article 8 of the Convention (United Nations, 1992) states that each party shall: 

respect, preserve and maintain knowledge, innovations and practices of Indigenous and local communities . . . relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge . . . and encourage the equitable sharing of the benefits arising from the utilization of such knowledge.

Other laws also address Indigenous knowledge and intellectual property. Published by the United Nations Educational, Scientific and Cultural Organization (UNESCO) and WIPO in 1976, the Tunis Model Law on Copyright for Developing Countries recognizes copyright in “works of national folklore” (section 6, p. 9). “Folklore” here overlaps somewhat in use and scope with Indigenous knowledge. The objective of the national folklore provision is to “prevent any improper exploitation and to permit adequate protection of the cultural heritage . . . which constitutes not only a potential for economic expansion, but also a cultural legacy intimately bound up with the individual character of each person” (section 6, p. 9). The overlap between national folklore, Indigenous knowledge, and intellectual property rights is relevant, but the Tunis Model Law on Copyright for Developing Countries remains unable to address biopiracy.

Despite good intentions, both UNDRIP and the CBD function more as acknowledgements of the problem of biocolonialism than solutions to it. As with all international legal documents, the functionality of international intellectual property laws depends on the decisions of powerful states to act on them, and unfortunately many powerful states have a vested interest in upholding colonial institutions. State-level laws and projects—such as the United States Native American Graves Protection and Repatriation Act and the Indian Arts and Crafts Act, as well as India’s Traditional Knowledge Digital Library—present partial, specific, and state-level solutions to the issue of Indigenous intellectual property rights (Oguamanam, 2008), but the international human rights system still fails to protect Indigenous knowledge. 

Biocolonialism and Biopiracy

Existing systems of intellectual property laws not only fail to protect Indigenous knowledge but sometimes actively harm it. Intellectual property systems are often mobilized by individual and corporate actors to steal, privatize, and profit from Indigenous knowledge. Indigenous peoples have criticized the intellectual property system as “a legalized means for misappropriation of cultural property” (Kanehe, 2014, p. 333). Such “misappropriation” occurs via instances of biocolonialism and biopiracy.

Susan Hawthorne (2007) wrote that modern colonization is “born from a ‘knowledge-based economy,’ one that relies on privatization and patents, as well as the exploitation and appropriation of Indigenous knowledge” (p. 315). She describes this phenomenon as the latest permutation of colonization; in this sense, “biocolonialism” is the system in which neocolonialism occurs through means of controlling biological resources, and “biopiracy” is one such method of biocolonialism. Hope Shand (2004) defined biopiracy as “the privatization of genetic resources . . . or related knowledge” (p. 35), while Indigenous African legal scholar Ikechi Mgbeogi explained it as “the unauthorized commercial use of biological resources and . . . traditional knowledge, or the patenting of spurious inventions based on such knowledge, without compensation” (as cited in Kanehe, 2014, p. 335). 

Natural phenomena were not patentable prior to 1980, but the United States Supreme Court ruled in Diamond v. Chakrabarty (1980) that patent law “provides for the issuance of a patent to a person who invents or discovers ‘any’ new and useful ‘manufacture’ or ‘composition of matter’” (syllabus section, para. 1). “Any” was intended to be interpreted widely; thus, Diamond v. Chakrabarty opened new avenues for biopiracy and the misuse of intellectual property rights around the world. For Indigenous communities in the Global South, whose livelihoods and cultures depend on biodiversity and biological resources, this system of biological commodification and privatization, and the opportunities for misappropriation afforded by Diamond v. Chakrabarty, pose and manifest as existential threats.

The Ayahuasca Patent

The ayahuasca patent case is in many ways the quintessential example of biopiracy. In the late 1980s, American scientist and entrepreneur Loren Miller patented a strain of the ayahuasca vine (Banisteriopsis caapi; Fecteau, 2001). The ayahuasca vine has been used by Indigenous people for hundreds of years as a religious symbol and medicinal herb. Miller had been given samples of a local ayahuasca vine by a tribe in Ecuador in 1974, which he brought back to the United States and cultivated, eventually developing a strain of the plant which was technically eligible for a patent. In his patent application for a plant he called “Da Vine,” Miller did not mention the Ecuadorian tribe, instead stating that he had obtained his samples from “a domestic garden in the Amazon rain-forest” (as cited in Fecteau, 2001, The Ayahuasca Patent section, Issuance of the Patent subsection, para. 2). 

In 1994, the Coordinating Body of Indigenous Organizations of the Amazon Basin (COICA) learned about Miller’s patent. Indigenous tribes in South America were (unsurprisingly) upset that an outsider claimed to have “discovered” a plant that had been part of their cultures for centuries. Antonio Jacanamijoy, the leader of a council which represented “more than 400 tribes and indigenous groups” (St. Louis Post-Dispatch, 1999, para. 3), said, “[our] ancestors learned the knowledge of this medicine and we are the owners of this knowledge” (as cited in para. 3). The case evolved into a matter of international concern when a threat against Miller from a tribe in Ecuador led to the United States canceling all aid to the tribal group. 

Over a decade after Miller’s patent was obtained, in 1999, COICA and the Amazon Coalition worked with attorneys at the Center for International Environmental Law (CIEL) to obtain a rejection of the ayahuasca patent from the United States Patent and Trademark Office. They requested a reexamination, arguing that Miller’s “Da Vine” failed all requirements of United States plant patent law: it was not distinct or new, it is found uncultivated, and it “violated the Patent Act’s utility requirement because issuing a patent on a plant that is sacred to indigenous peoples violates notions of public policy and morality” (Fecteau, 2001, The Ayahuasca Patent section, PTO Re-Examination subsection, para. 2). Even with these considerations, the Patent and Trademark Office (PTO) granted the rejection only based on the fact that Miller’s Da Vine was indistinguishable from existing ayahuasca specimens in American herbarium collections. All of the most significant issues CIEL raised—all of which concerned Indigenous peoples’ knowledge and cultural preservation—were ignored. 

Miller’s choice to exclude any mention of the Ecuadorian tribe from which he obtained the ayahuasca vine, the United States’ cancellation of aid to the group that threatened him, and the U.S. Supreme Court’s disregard for the violations against Indigenous intellectual property in their decision are glaring examples of biocolonialism—actions which sought to protect American bio-capital interests at the expense of Indigenous peoples.

Miller’s choice to exclude any mention of the Ecuadorian tribe from which he obtained the ayahuasca vine, the United States’ cancellation of aid to the group that threatened him, and the U.S. Supreme Court’s disregard for the violations against Indigenous intellectual property in their decision are glaring examples of biocolonialism—actions which sought to protect American bio-capital interests at the expense of Indigenous peoples. The Da Vine patent case was also a missed opportunity to create precedents that Indigenous peoples could use to combat and prevent further instances of biopiracy from taking place. It highlights the malicious nature of outsiders’ so-called “discoveries” of biological materials, not to mention the profit they make, and the harm perpetrated on Indigenous communities in the process.

Kalo and the University of Hawai’i 

In 2005, the public learned and criticized that the University of Hawai’i had previously obtained three United States plant patents on varieties of the Hawaiian Maui Lehua, or kalo (also known as taro). The University argued that their patents were meant to protect the kalo from international actors and misappropriation. To validate their stance as representing the Hawaiian people, University researchers claimed that their hybridization of kalo was “the same as what Kānaka Maoli [Native Hawaiians] have always done” (Kanehe, 2014, p. 336) because Native Hawaiians have historically crossbred kalo. However, there’s a crucial distinction between the actions of the University and of the Kānaka Maoli: “Kānaka Maoli have never claimed an exclusive, monopolistic ownership over kalo” (Kanehe, 2014, p. 336). Hawaiian culture teaches that the first kalo is the elder sibling of the Hawaiian people; thus, Hawaiians have a cultural obligation to the kalo. As succinctly described by Kānaka Maoli activist Alapaʻi Hanapī, the ownership of kalo is “like slavery” (as cited in Goodyear-Ka‘öpua et al., 2008, p. 181).

Through a series of protests in 2006, Hawaiians expressed their objection to any patents on the plant, even ones granted to Native Hawaiians. Following these protests, the University of Hawai’i terminated the patents. Afterwards, Kānaka Maoli demanded that the University sign a moratorium on any genetic engineering of Hawaiian kalo, and the University eventually complied (Kanehe, 2014). However, despite this case and other such progress towards the regulation of genetic modification of Hawaiian crops, these small victories do not equal legal protection in the state legislature. 

The University of Hawai’i kalo patents case supports Laurie Ann Whitt’s (1998) examination of how “western laws and bio-technoscience” (para. 1) contribute to biocolonialism:

if colonialism encompasses the interlocking array of policies and practices . . . that a dominant culture draws on to maintain and extend its control over other peoples and lands, biocolonialism emphasizes the role of science policy and of scientific practice within that array. (para. 2)

As one of the most biodiverse places on the planet, Hawai’i has been and continues to be the target of extreme and mainstream biocolonialism. “Hawaiʻi has had more plantings of experimental biotech crops than anywhere in the United States or the world, . . . making [the] islands an international and national sacrifice zone” (Kanehe, 2014, p. 331). The University of Hawai’i’s decision to obtain patents on the culturally significant and sacred kalo demonstrate a terrible irony for Indigenous communities around the world: Indigenous peoples are forced to bend their cultures to fit the parameters of a Euro-American intellectual property rights system in order to receive any protection. It is an irony that, in Le‘a Malia Kanehe’s (2014) words, “supports a foreign economic system, globalized capitalism, that encourages the commercialization of the sacred” (pp. 331–332). 

The University of Hawai’i’s decision to obtain patents on the culturally significant and sacred kalo demonstrate a terrible irony for Indigenous communities around the world: Indigenous peoples are forced to bend their cultures to fit the parameters of a Euro-American intellectual property rights system in order to receive any protection.

Conclusion

Since the backlash to Miller’s ayahuasca patent attempt in the 1980s, there have been few meaningful changes to protections for Indigenous intellectual property. Nearly two decades later, Native Hawaiians fought against the same issue—against an academic institution that was meant to represent them. The ayahuasca and kalo cases are only select examples of the ways in which the international intellectual property rights system fails Indigenous peoples and Indigenous knowledge.

Even in the late 20th century, the United Nations Human Rights Commission had identified intellectual property as an obstacle to the rights of people in the Global South (Shand, 2004). A 2009 report by the United Nations Secretariat of the Permanent Forum on Indigenous Issues also identified those intellectual property laws that allowed patents of biological resources and methods of cultivating them as a “threat to the protection and promotion of Indigenous knowledge” (p. 20). The report stated that: 

The dominant model for recognising and protecting knowledge and cultural expressions is the intellectual property rights regime . . . which is based on Western legal and economic parameters [and] emphasizes exclusivity and private ownership, reducing knowledge and cultural expressions to commodities that can be privately owned by an individual or a corporation. (p. 85)

Additionally, the United Nations Office of the High Commissioner for Human Rights (OHCHR; 2014) expressed that intellectual property regimes, although an important field of international law, have an impact on the “rights of Indigenous peoples and local communities” (Human rights impacted section, bullet 6). 

The need to improve what constitutes Indigenous intellectual property rights is clear, but the implementation of those laws is, even theoretically, complicated. As Shand (2004) expressed while addressing the growing international recognition of a need to review patent regimes, “property ‘rights’ must not be allowed to trample human rights” (p. 36). Remedies for the effects of colonization that rely on the very colonial institutions at fault are hardly remedies at all. 

Remedies for the effects of colonization that rely on the very colonial institutions at fault are hardly remedies at all.

The recognition preached by documents such as the United Nations report or the Convention on Biological Diversity (CBD) require an approach and legal framework of decolonization. Additionally, further research regarding the intersection of Indigenous knowledge and international intellectual property law must be done in order to reshape both international and local legal systems. Above all, it is crucial that Indigenous intellectual property rights be addressed as an international human rights issue.

The argument that Indigenous knowledge and systems of intellectual property rights are “too different” to ever reconcile remains. While there are often significant differences between Indigenous and Euro-American ideologies, these differences alone do not hinder the protection of Indigenous knowledge. Rather, the perceived schism between Indigenous knowledge and legal systems reflects ongoing efforts to maintain colonial systems of power, to discourage resistance and sustainability efforts, and to prevent Indigenous people from accessing the law. Psychiatrist and political philosopher Frantz Fanon wrote that colonization by itself occupies both a territory and a population; and so, resistance is neither personal nor incidental—it “emerges not simply in ‘man himself,’ but rather in life through its connection to land” (Clare, 2013, p. 62). For Indigenous communities around the globe, such resistance is paramount not only to their rights but to their survival. 

The abolishment of colonial institutions is certainly necessary to ensure that Indigenous peoples thrive, but abolishment is a gradual process. One starting place is intellectual property rights. The protection of knowledge and culture is crucial to an anticolonial framework. Existing intellectual property rights regimes, among other legal and social systems, require reexamination, reframing, and restructuring to include Indigenous peoples in the policymaking process at national and international levels, especially in regard to policies which directly affect their land. Including Indigenous peoples and their perspectives in policy is necessary to progress and promote the protection and value of not just their knowledge, but their existence.

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Definitions

Neocolonialism: “The economic and political policies by which a great power indirectly maintains or extends its influence over other areas or people” (Merriam-Webster, n.d.).

Global South: A term used to describe regions of the world that have been underdeveloped and subjected to colonization from the Global North. In the contemporary context of neoliberal globalization, the Global South is typically a site for resource extraction, while the Global North is primarily a site of resource consumption. These terms describe geopolitical power relationships rather than geographic relationships.

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References

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Author

Riley Currie is a community journalist based in Bellingham, Washington. She is a Spring 2021 graduate of Western Washington University, where she's majoring in journalism and public relations with minors in philosophy and Holocaust/genocide studies. She's deeply involved in the Bellingham arts and music community, where she's worked in nonprofit outreach since the spring of 2019. She plans to pursue international law with an emphasis on Indigenous rights and sovereignty in the near future.

A Politics of Listening: Preventing the Retraumatization of Sexual Violence Survivors in the US Criminal Justice System through Narrative Reclamation

By Emma Toth

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Abstract

The US Courtroom has always pursued ideals such as objectivity, the presumption of innocence, and the pursuit of justice. However, the investigation and litigation of sexual violence cases have consistently failed to uphold these values; instead, the system creates biased proceedings that retraumatize survivors who seek legal redress. Critical analysis of the narratives of victimhood, biases of the courtroom, and mistreatment of survivors exhibits the perpetuation of sexism and racism in legal contexts. Utilizing Miranda Fricker’s framework of epistemic injustice alongside intersectional analysis of high-profile cases, this paper analyzes the failures of the US criminal justice system with regard to sexual violence and suggests a restructuring of the process around care and listening.

Keywords

feminist legal studies, sexual violence survivors, sexual violence recovery, epistemic injustice, intersectionality, sexual violence cases, politics of listening, legal carceral system, criminal justice system

Introduction

Describing her approach to the investigation of serial rapist Marc O’Leary, lead detective Stacy Galbraith stated, “A lot of times people say, ‘Believe your victim, believe your victim [. . .] But I don’t think that that’s the right standpoint. I think it’s listen to your victim. And then corroborate or refute based on how things go” (Miller and Armstrong). While this concept of listening was key to Galbraith, it was not a standpoint shared by the investigative team previously involved in the case. Upon receiving a report of rape from the first victim of O’Leary, the initial investigators confronted and gaslit the woman until she admitted to making the story up—only for her report to be proven true three years later by Galbraith (Miller and Armstrong). While O’Leary was eventually caught and arrested, the mishandling of this investigation became a highly publicized example of how the US criminal justice system, here also referred to as the legal carceral system, can retraumatize the sexual violence survivors to whom it refuses to justly listen.

Although estimated rates of sexual violence are high for women and women of color in particular, the rates of reporting and prosecution remain dismally low for a reason; in legal contexts, survivors are often dismissed or misrepresented by the injustices that are not only consistent within, but foundational to current US legal procedures (Office for Victims of Crime). While any form of investigation or trial should be structured as an unbiased inquiry into the facts of a case, in sexual violence cases, the hegemonic influence of misogynistic sexual violence myths places a disproportionate value on the identity, actions, and character of the survivor while simultaneously devaluing their testimony and personhood. Operating within an inter-constitutive relationship between cultural myths and a historically prejudiced legal carceral system, a focus on “neutrality” in the courtroom obscures the ways in which the investigation, litigation, and public interpretation of sexual violence translates into hierarchies of victimhood and believability.

As theorized by feminist scholar Miranda Fricker, these narrative issues are based in both the hermeneutical and testimonial types of epistemic injustice, an injustice in which a person is wronged “specifically in their capacity as a knower” (1). Testimonial injustice occurs when someone’s testimony is granted less credibility due to prejudices related to their gender, race, sexuality, disability, accent, etc. (Fricker 1). Likewise, widespread testimonial injustice leads to hermeneutical injustice, the structural underrepresentation of marginalized experiences in the collective pool of knowledge shared by a society (Fricker 162). Absent from common understanding, marginalized individuals may struggle to make sense of their own experiences or communicate their experiences to others in the majority, such as investigators, judges, or juries (Fricker 147). In other words, “the powerful have an unfair advantage in structuring collective social understandings” (Fricker 147). Examining the treatment of sexual violence cases as a process of hermeneutical and testimonial injustice reveals that the trauma experienced in sexual violence—in which one is attacked in their “capacity as a subject [with agency]”—is exacerbated by the legal carceral system’s reliance on collective misunderstandings of sexual violence and mistrust in the survivor’s ability to produce a reliable narrative (Jackson 8).

Today, the phrase “Believe Women,” popularized by the #MeToo movement, has become synonymous with modern efforts to push back against sexual violence. Critics of “Believe Women” argue that inherent belief contradicts due process and that promoting this concept creates a biased criminal justice system. While the ideas of fact and belief seem to contrast, they are not necessarily contradictions. In the space between protecting innocent defendants and inherently believing survivors is the call for survivors’ stories and perspectives to be fairly heard, without preconceived notions or myths. While a form of abolition and institutional restructuring is undeniably required to equalize justice, this is unlikely to occur. Given these parameters, taking on different forms of engagement can disrupt the retraumatization of survivors. 

Rather than an institutional change, a focus on the methodology can lead to a reexamination of the power structures in the legal carceral system and bring about a change in how it listens. In this way, a feminist politics of listening serves as an accessible methodology to deliver a type of justice and care to survivors beyond the prosecution and incarceration of assailants. The framework of listening developed in this paper recognizes the prevalence of testimonial and hermeneutical injustice occurring in these largely testimonial-based cases and seeks to prioritize the narrative and healing of the survivor. Likewise, this paper analyzes how the legal carceral system delegitimizes the stories of survivors, and suggests tactics shaped by a politics of listening to ameliorate this flawed structure.

Whom We Listen To

“Neutrality” in the Courtroom

The work of feminist scholars such as Miranda Fricker, Iris Marion Young, and Marilyn Frye argue that normalized standards within the legal carceral system that ignore and perpetuate systemic bias cannot be understood as “neutral.” Historically, the legal carceral system’s treatment of sexual violence has understood victims as objects rather than subjects. In their European origin, sexual violence laws understood rape as theft, a “crime against property, not person” (Tracey et al. 4). The word “rape” itself originates from the Greek word for “to steal,” reflecting how “a woman’s reproductive capacity” was property owned by her father or husband (Brown 6; Tracey et al. 4). Later American laws perpetuated this protection of male interests, creating “numerous procedural anomalies unique to [cases of rape]” that stigmatized and disadvantaged survivors in court (Tracey et al. 5). For example, laws required evidence of the victim’s resistance to the assault, allowed the victim’s sexual history and character to be admitted into evidence, and failed to acknowledge that women could be raped by their husbands (Tracey et al. 5). While many of these laws and procedures were reformed in the 1970s, widespread prejudice, sexual violence myths, and forms of epistemic injustice remain prevalent. 

As recently as the 1980s, American judges would begin rape and sexual assault trials with some variation of “The Hale Warning”: “rape is an accusation easily to be made, hard to be proved, and harder yet to be defended by the party accused, tho’ never so innocent” (Chappell et al. 163). While no longer practiced in the common law, this sentiment of misogynistic skepticism prevails within the discussions and the treatment of sexual violence cases. A 1977 study of judges who had worked on rape cases in the Philadelphia Court system found that judges believed that “the worst error the criminal justice system can commit is to convict an innocent man” (Chappell et al. 163). Such statements underline a high level of judicial skepticism that conflicts with the credibility of women’s testimony—a narrative that is key in the context of a crime that is not just physical but personal and psychological. 

Emphasis on objectivity and neutrality within the legal carceral system has created limited parameters that demand new forms of engagement to work against the active perpetuation of trauma and violence. Identity, considered both individually and collectively, is used to create and support hierarchies that are defined through categorization and “top-down” intervention. This process ultimately devalues the people the criminal justice system claims to serve. According to the 2018 National Crime Victims’ Rights Week (NCVRW) Sexual Violence Fact Sheet, “[over] their lifetime, an estimated 19% of women and 2% of men will have been raped, while 44% of women and 23% of men will experience some other form of sexual violence” (Office for Victims of Crime). Sexual violence has disproportionately impacted minority communities; rape and sexual assault are reported in higher numbers in communities of color, particularly for women of color (Office for Victims of Crime). These statistics have remained consistent over the past decade, alongside low rates of receiving victim services, low rates of reporting to police, and low rates of successful prosecution in the court. 

The legal carceral system is comprised of individual actors with their own biases and experiences—often delimited by the prevalence of hermeneutical injustice—that will undeniably impact their work. As of 2020, 62.6% of lawyers are men and 83.5% of all legal occupations are held by white people (“Employed Persons by Detailed Occupation, Sex, Race, and Hispanic or Latino Ethnicity”). Men also hold 76.4% of protective service occupations (e.g., police, detectives) and white people comprise 74.5% of these occupations (“Employed Persons”). Since survivors of sexual violence are overwhelmingly women of color (Office for Victims of Crime), these statistics show an undeniable power imbalance and lack of representation. When those assigned to protect and administer justice share more identity characteristics with assailants than survivors, it clarifies why so many cases go unreported or are mishandled. Most individuals rendering legal decisions in these cases benefit from the same privileges that allow many sexual assailants to escape due sentencing. To have a system function on the judgement and interpretation of fact by such individuals requires addressing bias. Acknowledging these long-term, top-down failures is simply not enough; a significant shift must occur.

While a stance against neutrality might appear radical, introducing subjectivity may ultimately increase the system’s intended objectivity, decreasing the epistemic injustices that obscure prejudiced elements of criminal proceedings.

To redefine this system as inherently unneutral topples many of its principal pillars but allows for a new understanding of justice and care. While a stance against neutrality might appear radical, introducing subjectivity may ultimately increase the system’s intended objectivity, decreasing the epistemic injustices that obscure prejudiced elements of criminal proceedings. Incorporating a “bottom-up” narrative reframes institutional approaches to sexual violence litigation and investigation, but also expands those processes and notions of justice beyond the goal of incarcerating assailants. Focus on the determination of fact has occupied the courtroom to such an extent that it denies any space for processes of agency, expression, and healing. Grace Taluson argues that this is because “everything in our culture would like us to repress trauma, and shame is at the core of this,” and thus, “there doesn’t seem to be much room to grieve, complain, or have other kinds of reactions” (44). Crimes of sexual violence are uniquely physically and emotionally violent, and in seeking justice, every consideration should be taken towards healing survivors, not repressing their trauma. Healing begins with returning the subjectivity and agency that was revoked in the assault through the survivor’s emotional expression and the acceptance of the survivor’s narrative. 

The Typology of Victimhood

Throughout every stage of sexual violence litigation, survivors are segregated into categories that simplify their experiences into hierarchies of importance and believability. This victim typology remains one of the most powerful tools to silence survivors’ stories. As these categories are largely based on the judge and jury’s interpretation of given evidence and survivor narratives, this process of categorization is a hermeneutical injustice because the misinterpretation of narrative is determined by societal sexual violence myths. Categorization not only impacts the well-being of survivors but also the results of the system—the defense used, the evidence admitted, the category of the crime, and the sentencing. Due to this bias, sexual violence cases often focus less on the facts of the alleged crime, and more on the character of those involved. As the Marc O’Leary case shows, “the credibility of the victim [is] often on trial as much as the guilt of the accused” (Miller and Armstrong). The conflation of a survivor’s story with a category of victimhood is the product of a legal carceral system that prioritizes the accused over hearing and understanding accusers. 

There are three defenses for rape and sexual assault cases in the US court: that the rape did not occur; that the rape did occur, but the defendant is not the rapist (defense of identity); and that the rape was “consensual.” Simply put, these defenses propose that a survivor is either lying intentionally or is not believable. The final, contradictory defense is even common in high-profile and controversial cases and has the most dependency on victim typology. Judicial attitudes and behavior must be examined, since judges determine what evidence is admissible in court and how much bearing the evidence has on proof of consent. Circumstantial evidence ranks among the most valued by judges and can include such details as prior relationship, immediate outcry, time between incident and filing of complaint, flight of defendant, and cooperation with identification, among other factors. The circumstances are also informed by the characterization of the survivor into categories of motive, justification, and believability. These categories are defined differently by many scholars and judicial actors but can be simplified into the following three: the real victim, the consensual victim, and the vindictive victim (Chappell et al. 163; Ertman 2; Pietsch 136). 

Dominant “Victimhood” Narratives

The “real victim” is a category, commonly coupled with the “stranger jumping out of the bushes” narrative, that dominates most sexual violence discourse. It is crucial to note that the “stranger jumping out of the bushes” is a rape myth that has influenced how all legal and social conversations around sexual violence are approached. This myth:

is [. . .] often used when warning women about sexual assault. [Women] are told [they] shouldn't go out late at night alone, especially in parks, and that [they] should carry pepper spray [. . .] to fend off violent attackers [. . .] the creepy guy in the park, the man in the hoodie walking closely behind you. (Fields 429)

Here, sexual violence is portrayed as violent, unexpected, and performed by a stranger. This narrative disregards the fact that 80% of rapes are committed by someone known by the victim and only 11% of sexual violence cases involve a weapon (“The Criminal Justice System: Statistics”). Beyond establishing inaccurate social perceptions, the “stranger in the bushes” myth appears in judicial language and perception, through references to “classic rapists” and “real victims.” As will later be analyzed, the real victimhood category not only perpetuates inaccurate narratives about sexual assault, but also deeply relies on hegemonic notions of race and femininity.

The category of consensual victimhood, described by some judges as “friendly rape,” “felonious gallantry,” or “assault with failure to please” (Chappell et al. 164), faces the most scrutiny in conversations surrounding sexual violence. The term “consensual victim” itself exhibits the category’s oxymoronic quality. Heavily criticized for prioritizing the innocence of the defendant, categorizing a victim as “consensual” discredits not only their story but also their character. Judges rank consensual victimhood as less credible than “real victimhood” and rely heavily on the interpretation of circumstantial evidence. A 2019 New York Times opinion piece exemplifies the characterization clearly: “she hadn’t acted like a rape victim. She’d had a rifle. Why didn’t she just shoot them? A real rape victim would have fought back” (Dostie). Of the three categories, the “real” and the “consensual” victim are most often compared by the public and in the courtroom. Additionally, while rape shield laws, introduced in the late twentieth century to curb the use of a survivor’s sexual history as evidence, have diminished the damaging subjectivity of interpreting such evidence, they do not fully ensure neutrality in the courtroom. The constricted, unrealistic parameters of real victimhood create such a limited category of credibility that any deviation constitutes falsehood.

The least credible victim category, the vindictive victim overlaps with consensual victimhood but is distinct in its perceived motivations. Judicial attitudes on this category are measured on “reflections of a woman's desire to get even with a man” (Chappell et al. 165). The nicknaming of the Philadelphia sex crimes unit as the “lying bitch unit” in the 1990s exemplifies the institutional misogyny present (Chemaly). A paucity of research supports claims that both assert and deny the use of false rape accusations as a means of revenge, resulting in this category being one of the most highly contested sexual violence narratives. Citing Catharine MacKinnon, lawyer Edward Greer argues that legal dominance feminists (LDF), such as MacKinnon, assert the value of believing survivors’ reports by emphasizing the small percentage of reported false rape accusations. Opposition to the vindictive victim contends that there is little to no evidentiary support proving an exact number of false rape accusations, and thus if “as many as a quarter of the men currently accused of rape are actually innocent, then the goals of LDF are truly destructive” (Greer 949). Debate around the characterization and basis for the vindictive victim is rooted in numerous valid sociopolitical concerns, but with a lack of substantial research to undergird any argument, scrutiny of this category must acknowledge its undeniably misogynistic construction.

The Intersection of Race and Gender

In an interview from The Politics of Rape: The Victim’s Perspective, Diane E. H. Russell asks Sonia Morell, a Black rape survivor, how her identity affected how she perceived her assault. Morell explains, “When it first happened, I thought I was carrying the burden that all black women carry. Now I feel that I'm just taking what all women have to take, but what all women should refuse to take” (135–136). She did not even recognize her assault as rape until “a rape victim told me about her experience, which was similar to mine” (135). Morell’s statements draw attention to not only the dangers of hermeneutical injustice but also the racial narratives that surround sexual violence.

A central focus on listening and narrative does not erase the social constructions and hierarchies that influence the legal carceral system, thus the need to question whom we listen to and how we choose to listen.

A central focus on listening and narrative does not erase the social constructions and hierarchies that influence the legal carceral system, thus the need to question whom we listen to and how we choose to listen. An examination of the “long historical entanglement between white supremacy and listening in the United States” (Stoever 2) can help analyze how race and gender interact within a politics of listening framework. In her book Hood Feminism, Mikki Kendall points out the popular racial stereotypes that portray “Black women and Latinas as promiscuous, American Indian and Asian women as submissive, and all women of color as inferior,” stating that “justice is not served by racism, no matter how hard it is peddled by politicians and white supremacist narratives as a way to protect women. Not replicating these harmful narratives is part and parcel of [sic] ending sexual violence against women” (59). 

Additionally, Marilyn Frye’s analysis of uptake, or the reception and justification of the survivor’s anger, focuses on gender but can expanded to consider how different intersecting identities affect one’s likelihood to receive uptake. In describing the epistemological value of anger and how it is received, Frye argues that “anger can be an instrument of cartography” (94), referencing how the types of reception granted to someone’s anger can map one’s position in the social hierarchy. The ability to receive uptake and freely express anger is directly connected to one’s agency and influence, and according to several feminist philosophers, “in US culture, women's contempt is given uptake in a very narrow range of circumstances” (Bell 87). In her analysis, Nancy Nyquist Potter applies uptake to the courtroom setting: “the US Supreme Court can be said to give uptake to petitioners, when it considers an appeal, regardless of the outcome of the hearing” (152). A survivor’s allegation against a perpetrator can be understood as an expression of anger, and thus the results of that case become a form of perceived justification of the survivor’s anger. Through predetermining a survivor’s intention and character via categorization, the survivor’s story loses uptake, putting the survivor at risk of trauma through their loss of agency. Under Frye’s argument, there are inherent gender differences in this process that must be addressed, but an important point of inquiry is where gendered notions of uptake intersect with racialized narratives of anger and credibility.

In applying an intersectional lens to sexual violence court cases, it is crucial to acknowledge existing interlocking oppressions, especially while considering uptake. In a 2019 segment of All Things Considered, Mayowa Aina and Michelle Martin examine intersectionality while discussing Brittney Cooper’s book Eloquent Rage: A Black Feminist Discovers Her Superpower. Cooper argues, “the whole sort of American political system is designed to respond to white male anger and white male discontent” (qtd. in “Harnessing the Power of ‘The Angry Black Woman’”). She specifically contrasts Michelle Obama, who openly discusses being “labeled that angry black woman,” and Lindsey Graham who, during the 2018 Brett Kavanaugh trial, shouted, “this is going to destroy the ability of good people to come forward because of this crap” (qtd. in “Harnessing the Power”). Jessica Valenti speaks about this same trial on NPR months later, stating, “Christine Blasey Ford was widely believed even by Republicans. But what happened was even though they found her credible, they [the Senate] did not find her story important enough to take action [justifiable]” (“'Believe Me' Author Calls for a Simple but Radical Shift Beyond 'Me Too'”). Cooper and Valenti point out each side of the double bind that sexual violence survivors face in sharing their stories: either their identity as victims discredits their ability to tell their stories, or their stories discredit their identity as victims. The continuous racist and sexist labelling of Obama, the discreditation of Blasey Ford’s testimony, and Kavanaugh’s eventual confirmation speak to how both the public and the political world permit, police, or privilege the behavior of individuals with different racial and gender (among other) identities. If the nationally observed testimony of a straight, white, cisgender, financially privileged doctor is so easily discredited, one must ask: What further obstacles are faced by individuals who do not possess those privileges? 

One case that examines such privileges and one that scholars use to interrogate an instance of the “real rape” myth is the Central Park Five case. This case involved the rape of a white woman in Central Park, allegedly committed by five Black and Latino male teenage suspects who did not know the woman. In 1989, the five teens were convicted on charges of murder, rape, and assault, charges which were later found to be based largely on police-coerced confession. They were not released until 2002 when DNA evidence surfaced and someone else confessed to the crime; and while they were granted a large settlement, “the City of New York denied any wrongdoing” (Harris). The conviction of these teens was largely supported by the New York City mayor, the public, and prominent figures such as Donald Trump, who reportedly spent approximately $85,000 in New York newspapers calling for the deaths of the Central Park Five—who were at the time often referred to as “The Wolfpack” (“The Central Park Five”). While the jogger’s name was kept anonymous (until 2003), her identity as a white woman was public knowledge (“The Central Park Five”). Through the national attention this case received, one can see the uptake her privilege awarded her—and the prejudice against the five teenagers. The Central Park Five case, according to Chezia Carraway, “perpetuated the mythology that ‘real’ rape only occurs to wealthy white women” (1304) and maintains a racialized narrative around males of color as violent criminals and a threat to white femininity. While “the suitable paradigm for [real victims] might be the ‘stranger leaping out of the shadows in the dark alley situation’” (Chappell et al. 164), its foundation, like other sexual violence narratives, is built on a single axis understanding of gender and femininity that defines who deserves to be heard and protected. 

People v Turner 

“When I was told to be prepared in case we didn’t win, I said, I can’t prepare for that. He was guilty the minute I woke up. No one can talk me out of the hurt he caused me. Worst of all, I was warned, because he now knows you don’t remember, he is going to get to write the script. He can say whatever he wants and no one can contest it. I had no power, I had no voice, I was defenseless.”

– Chanel Miller (qtd. in Baker) 

The highly publicized 2016 rape case, People of the State of California v Brock Allen Turner, or People v Turner, saw narrative not only take the forefront of legal proceedings, but dominate the conversation around sexual violence. In 2015, around one o’clock a.m., two Swedish exchange students saw Brock Turner rape Chanel Miller, who was unconscious, behind a dumpster on Stanford University’s campus. When the two students called out to Turner, he fled the scene; however, they were able to catch him and call the police. Miller was taken to the hospital where she was treated for bruises, abrasions, and genital trauma, but only learned the details of her own assault by reading about it in a news article a week later. Although the deputy had informed Miller that she had been assaulted and hospital staff informed her that she had been “potentially penetrated by a stranger” (Baker), she had no details or memory of what had happened. Upon learning these details, Miller expected a formal apology and a settlement, but instead learned that Turner had hired a lawyer and intended to overturn the case in trial. Though Miller had two witnesses, bodily abrasions, and compelling medical evidence, Turner was able to walk away from the trial with a six-month sentence, only three of which he served, followed by two years’ probation and registration as a sex offender. People v Turner serves as a clear example of how the current system and the use of narrative create harm within the litigation process and its aftermath.

Occurring during the midst of the #MeToo movement and growing conversation around campus sexual violence, Turner’s light sentencing garnered widespread criticism; People v Turner quickly became the epitomal case for injustice against sexual assault survivors. Miller initially kept her name from the public, but the Turner defense team and media reports soon took advantage of her anonymity and lack of memory. Relying on a consensual rape defense, Turner and his lawyer employed every tool of victim categorization to dismantle Miller’s story, portraying her as a drunk, promiscuous, and consenting victim. While Turner’s attorney questioned Miller on what she was wearing and how serious she was with her boyfriend, media and court records consistently reminded the public that Turner was a young, promising college athlete with a loving family. 

Miller addresses this discrepancy in her victim impact statement: “In newspapers my name was ‘unconscious intoxicated woman,’ ten syllables, and nothing more than that. For a while, I believed that that was all I was. I had to force myself to relearn my real name, my identity. To relearn that this is not all that I am” ( qtd. in Baker). Miller’s victim impact statement, read directly to Brock Turner during the 2016 trial, exposes the mishandling of the case and reclaims the narrative in a powerful manner. The statement covers not only the details of that night but also its immediate and lasting impacts and the issues she saw in the handling of her case. Before the release of her book, Know My Name: A Memoir, in September 2019, Miller finally revealed herself as the victim. Her choice to claim her identity in the case, she states, was largely an effort to “humanize [herself]” after the victimization and powerlessness she experienced during the trial (Sangal).

The role of a victim impact statement (VIS) is specified by the Department of Justice to provide “an opportunity to express in your own words what you, your family, and others close to you have experienced as a result of the crime. Many survivors also find it provides some measure of closure to the ordeal the crime has caused” (“Victim Impact Statements”). Victim impact statements work as a platform to encourage a politics of listening and a consideration of survivor storytelling. Yet Miller, who delivered one of the most public and compelling VIS in recent years, still felt that “[she] had nothing to offer [and that her] testimony was constantly useless” (Sangal). Miller shared her frustrations in multiple interviews after the trial, noting that her position as a victim and her standing in relation to Turner were interpreted through a lens of misogyny, racism, and privilege. Her statements both in court and following the trial point out the privilege awarded to Turner due to his race, gender, class, and social standing, as well as the silencing and victimization imposed upon her due to her identity as a biracial Asian American woman.

Interpretation of identity in People v Turner eventually overtook the case, obscuring the important facts and details that should be central to a criminal trial. Turner’s identity played an explicit role in his sentencing, as Judge Aaron Persky (who has since been removed) stated concerns that “a prison sentence would have a severe impact” on Turner (Astor). As a white man, Turner’s depiction in the court and in the media stands in stark contrast to the court and media perspectives on the Black and Latino teenagers of the Central Park Five, all ages 14–16 at the time of their arrest. While Turner, age 19 at the time of his arrest, was portrayed by lawyers and family as youthful and innocent, the Central Park Five were dehumanized and discussed as though they were adults. A 2014 study finds that Black children are viewed as older, less innocent, and more responsible for their actions than children of other races (Goff et al.). In a system founded upon “innocent until proven guilty,” cases like People v Turner exemplify how presumptions of innocence are not dealt evenly. 

In a system founded upon “innocent until proven guilty,” cases like People v Turner exemplify how presumptions of innocence are not dealt evenly.

The intersection of sexism and racism imbedded in this core value has both unjustly criminalized innocent children and obstructed justice for survivors. Miller’s story and VIS certainly affected the public but were not given the deserved traction in court. Though some tools and structural provisions necessary to amplify survivors’ voices and encourage listening are present within the legal carceral system, they are not being utilized due to pervasive prejudice practiced by those in the court. Nonetheless, a practice in listening can prove effective in making changes that may prevent future survivors from facing similar experiences in court, as exemplified by the California State Legislature later adding two bills that changed the law surrounding sexual assault due to the public outrage following the 2016 trial.

Listening in Practice 

The Rape, Abuse, and Incest National Network (RAINN) describes the role of the survivor in a “proceeding is to answer each lawyer’s questions and any questions the judge might ask.” Systematically limiting the expression of survivors to this extent must be abolished. In cases that rely so heavily on narrative, the subjective experiences of survivors should be central in a trial—without interruption through constant questioning of detail and fact. The process of questioning in any court is deeply valuable but has historically been used to test the reaction of or challenge lawyers in an effort to distract or derail—essentially silencing the victims—rather than to obtain case details. While judges and lawyers’ questioning undeniably plays a crucial role in any trial, these cases demand they take up less space to allow for free epistemic expression. Utilizing tools such as the victim impact statement (VIS) as integral parts of trial proceedings, rather than as symbolic healing practices, can limit the manner in which these trials victimize and harm survivors.

As People v Turner demonstrates, the VIS is an acknowledged participatory right in the courts, but does not necessarily play as important a role in proceedings as it should. Several instruments allow survivor participation in criminal justice procedures, all of which should be emphasized and further tailored to survivors’ needs, but the VIS is a crucial tool for expediting survivors’ recovery (Lens, “Delivering a Victim Impact Statement”). Research on the VIS has focused on the therapeutic impacts and motivating factors behind its delivery. Findings indicate that sharing emotions related to an event is a key part of recovery (Lens, “Delivering a Victim Impact Statement”); however, a large empirical gap appears in research on judicial attitudes towards the VIS, as well as a need for continued research on the potential secondary victimization of such tools. Placing a greater emphasis on the VIS must follow research on its heterogeneous impacts and consider what “works for whom and under which conditions” rather than simply “what victims want” (Bogaerts et al.). Challenging the homogeneity and perceived neutrality of the judicial system must begin with a restructuring of methods through an intersectional lens. 

Tackling the issues of typology requires a reevaluation of these practices via intersectionality and queer theory. Mikki Kendall uses the 1944 Recy Taylor case to further emphasize the need to center women of color in addressing sexual violence. Recy Taylor was a 24-year-old Black mother who was kidnapped and raped by six white men at gunpoint, which she reported to the police. Though her case was dismissed twice in court and her assailants were not indicted despite having witnesses and one of the men admitting to the crimes, her case became a precursor for the civil rights movement, as it garnered the attention of and successfully mobilized prominent activists across the nation. Her court case, though an abhorrent failure of the criminal justice system, became integral to the fight for the rights of women (especially women of color) and survivors of sexual violence. Throughout history, the organizing and work done by women of color to combat sexual assault have been as consistent as the injustices committed against them by the US legal carceral system. To address sexual violence only through the frame of gender is not just limiting—it erases the labor done by and violence conducted against women of color, thus perpetuating a cycle of racism and sexism. Intersectionality is more than a tool to view sexual violence—it is the key to ending it.

Intersectionality is more than a tool to view sexual violence—it is the key to ending it.

This demands a move away from current processes that emphasize objectivity and categorization, and instead towards processes that prioritize subjective agency for survivors and recognition of the epistemic injustices that can occur through top-down interpretation of narrative. The Marc O’Leary case, the Central Park Five, and People v Turner show that the results of sexual violence cases in the courts are often predetermined by victim categorization and a simplified interpretation of events—aspects that prejudice results and stifle the healing of a survivor. The issue of categorization has long plagued survey and social research because of concerns about reification or the exclusion of specific experiences. This same question applies to the process of victim categorization: while the role of the legal carceral system is undoubtedly to try and confirm facts, the disciplinary borders of this practice can be pushed beyond current limited, homogenous practices. Many research theories and practices can be applied to subvert these patterns but focusing on survivors’ stories through an active practice of listening is an essential first step in recognizing the heterogenous experiences of survivors. 

Should a survivor choose to pursue a criminal trial, many states have a Victim’s Bill of Rights that enumerate their rights throughout the trial process. The key right of survivors to be heard and participate in criminal justice proceedings, however, is often not prioritized. Efforts to centralize survivors in their own trials must be shared across all states and centralized throughout every step of criminal proceedings. A 2019 guide for counsel published by the Supreme Court began this process by allowing lawyers two minutes to advocate for their clients without questioning by the justices. Oral arguments, typically lasting about thirty minutes, have consistently been interrupted by justices, often preventing the incorporation of narrative. This guide has come forward “amid a political culture of escalating loudness, [in which] the justices have taken a symbolic step back toward respect and attention” (Editorial Board). The shift towards “respect and attention” must also be applied towards the participatory tools provided to survivors. 

Conclusion 

Acts of sexual violence rip agency from survivors, and, too often, the legal and judicial proceedings that follow engage in similar trauma. The pattern of abuse against women in the US court and culture demonstrates that radical change is necessary to create spaces for healing and safety. In response, feminist scholarship asks that key questions be considered: Who gets away with using violence? Who is most commonly subject to it? Why does it occur? Although a form of abolition may be necessary long-term, a politics of listening offers a means of improvement to the current situation.

Although “no rules or formalities can ensure that people will treat others in the political public with respect [or] really listen to their claims” (Young), certain institutional shifts can create more space for respect and listening. Cases like Chanel Miller’s clarify that the legal carceral system and the US sociopolitical culture stifles the potential of tools such as victim impact statements; however, these tools could be used to encourage a politics of listening, a change that demands sexual violence be understood through the frame of survivors’ experiences rather than hegemonic rape narratives and victimhood typology. A politics of listening holds not only social significance for sexual assault survivors but is also an important intervention in widespread epistemic injustice and may encourage more accurate proceedings and redress (Young). Legal spaces are crucial forums for intervention and, through a politics of listening, could become crucial forums for healing.

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Definitions

Victim: The term “victim” is only used in this paper in reference to specific criminal proceedings and judicial tools, and in all other contexts the term “survivor” is used.

Legal carceral system: The intersecting court, prison, and policing institutions that incarcerate individuals in order to uphold the law; the understanding of incarceration as criminal justice.

Rape and sexual assault: Due to differing state definitions, both rape and sexual assault are referred to as sexual violence, with exceptions for specific language used in legal cases.

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References

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Author

Emma Toth is a writer from Seattle, Washington. She graduated from Western Washington University with degrees in Political Science and Women, Gender, and Sexuality Studies. She is currently preparing for the LSATs with intention to apply to law schools in Fall 2021, where she will ideally continue to study gender and sexuality in the legal field.

“We Know We Are Forgotten”: Re-Centering Women in the Study of Economic Sanctions on Iraq, 1990–2003

By Samia Saliba

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Abstract

From 1990 to 2003, the United Nations, largely at the direction of the United States of America, enforced a strict set of international sanctions against Iraq with the goal of eliminating the state’s chemical weapons and weakening Saddam Hussein’s regime. While the impacts of these sanctions were widespread and devastating for the general population, this period also saw a specific loss of rights and worsening of social and economic conditions for most Iraqi women. Utilizing a historical and intersectional feminist lens, this paper examines the understudied gendered impacts of sanctions, particularly the effects on women’s participation in the workforce, education, and political arena; the impact on family structure, marriage, and patriarchal violence; and the experience of ethnic or religious minority women in Iraqi Kurdistan. This paper argues that the sanctions not only halted the expansion of gender equality, but actively reversed gains in women’s rights made during the previous decade. Exposing the regressive gendered implications of US policy in Iraq, it argues that sanctions cannot be considered a nonviolent alternative to traditional warfare given the policy’s effects on vulnerable populations. 

Keywords

women’s rights in Iraq, Iraq sanctions, gender violence, United States foreign policy, imperialism, United Nations, feminism, international relations

Introduction

The Myth of Liberation

In a speech given during International Women’s Week of 2004, nearly a year after the formal start of the US war on Iraq, President George W. Bush championed the so-called “liberation” of 25 million Iraqi and Afghan women; democracy, he claimed, must be promoted in the Middle East so that women may “take their rightful place in societies that were once incredibly oppressive and closed” (“President, Mrs. Bush Mark Progress”). This idea that foreign invasion and endless war results in women’s liberation should be suspect, just as the idea that the war on terror promoted democracy should be suspicious to anyone who has seen photographs of Abu Ghraib. As feminist scholar Chandra Mohanty has argued, such universal claims about the oppression of Third World women serve to write those women “outside history,” stripping them of their voice, agency, and variety of experience based on class, ethnic, or religious differences (70). Indeed, President Bush’s ahistorical conception ignores the diversity of women’s lives in pre-invasion Iraq and, moreover, disregards the unmistakably gendered impacts of the decade-long economic sanctions previously imposed on Iraq by a US-driven United Nations. Enforced from 1990 to 2003, the broad-ranging sanctions devastated the Iraqi economy, caused widespread poverty and malnutrition, and more than doubled child mortality rates—public health crises only worsened by the US bombing Iraqi sanitation and water facilities during the Gulf War (1990–1991) (Ali and Shah 1851; Garfield 35). This widespread devastation likewise affected the lives, conditions, and treatment of women in particular; both the 1994 and 1998 Periodic Reports from Iraq on the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) determined sanctions to be the primary barrier to improving women’s status and rights (“Concluding Observations” 33; “Second and Third Periodic Reports” 8).

While the status of Iraqi women prior to sanctions cannot be simplified to fit the imperialist dichotomy of “liberated” or “oppressed,” this study argues that sanctions not only halted the expansion of women’s rights but actively reversed the advancements in gender equality made during the period of 1968–1990. Historicizing the complex relationships of Iraqi women to sociopolitical institutions through a feminist lens, this essay analyzes the broad impacts of sanctions on gender relations across the following categories: employment, political participation, education, family relations and marriage, and violence against women.  This article complements recent transnational data-analyses on sanctions in relation to human rights; research shows that sanctions, particularly comprehensive sanctions, worsen human rights abuses related to “physical integrity,” defined as extralegal killing, torture, disappearance, ethnic violence, and the violation of women’s rights (Peksen 59; Drury and Peksen 483; Lv and Xu 105). Additionally, this study draws on the work of two Iraqi Assyrian scholars and sanction era survivors, Mariam Georgis and Riva Gewarges, who understand sanctions as an extension of colonial power over the Global South. Given that the US-international justification for sanctions fixated on the threat of the Iraqi state while reenforcing the historical othering of Iraqi bodies, Georgis and Gewarges argue that comprehending the violence of sanctions requires decentering the state and focusing on the experiences of the Iraqi people (320).  In following their necessary recentering and rehumanization of Iraqis, this paper challenges the common Euro-American view that Iraqi economic sanctions are a nonviolent alternative to war, demonstrating the violent results which directly harmed the country’s marginalized populations, particularly women of a lower economic class, or women belonging to an ethnic or religious minority group. 

Note on Surveyed Literature

This work employs case studies and oral histories that highlight the specificities of Iraqi women’s experiences through their own voices. There are three primary scholars whose work explores a gendered impact of sanctions in Iraq: Nadje al-Ali, Nicola Pratt, and Yasmin Al-Jawaheri. 

Al-Ali’s 2007 book, Iraqi Women: Untold Stories from 1948 to the Present, argues that the experience of women in the post-invasion era cannot be understood without the history of gender relations from the period of British colonialism to modern day. Chapter five, “Living With War and Sanctions,” argues not only that the sanctions had gendered effects, but that “women and gender ideologies and relations were . . . at the centre of social and cultural change during this period” (175). Al-Ali’s 2008 article, “Reconstructing Gender: Iraqi Women Between Dictatorship, War, Sanctions, and Occupation,” provides important historical context for the long-term trajectory of gender relations in Iraqi politics and society, including the development of state rhetoric and action with regard to women’s rights. Al-Ali and Pratt’s 2009 book, What Kind of Liberation?: Women and the Occupation of Iraq, and their 2011 article, “Conspiracy of Near Silence: Violence Against Iraqi Women,” add important perspectives on the experience of Iraqi Kurdish women under sanctions. They also illustrate how the particular context of Kurdistan, including its semi-autonomous governance and the interference from foreign nations and the Iraqi central government, contributed to violence against women. The last major scholarship on gender and sanctions in Iraq, Al-Jawaheri’s Women in Iraq: The Gender Impacts of International Sanctions, combines statistical analysis with a comprehensive process of surveying and interviewing women from various class, family, and educational backgrounds in Baghdad. Through this work, Al-Jawaheri argues that, although Iraqi laws regarding women’s rights stayed relatively static during the sanctions era, the sanctions contributed to a reversal of recent social gains for women, in large part due to the state’s failure to enforce the laws guaranteeing women’s participation in education and the work force (140). Though this work is perhaps the most comprehensive analysis of women’s rights under sanctions, its geographic scope is limited to Baghdad, missing the perspectives of rural women and women in other regions such as Iraqi Kurdistan. 

This essay draws extensively on both the interviews in these sources and the authors’ feminist analysis. In integrating the different perspectives and regional analysis of these sources, this paper provides a more comprehensive overview of the effects of sanctions on women. 

Sanctioning Iraq

Before discussing the particular effects of sanctions on women, it is necessary to understand the historical context surrounding sanctions and the forces which maintained the policy’s violence. The sanctions against Iraq began in August of 1990 and continued until May 22, 2003, after Saddam Hussein had been overthrown by the US invading forces. The sanctions imposed a total embargo on trade and financial support to Iraq, with exceptions for medicine and a limited number of food products. Initially, the sanctions were put in place with the goal of forcing Iraq out of Kuwait, a goal quickly achieved through military force during the first Gulf War. The sanctions, however, were not lifted. Instead, they were reframed with the goal of forcing the Iraqi government’s compliance with ongoing UN Special Commission (UNSCOM) inspections, an act allegedly meant to ensure that the government was not harboring chemical weapons in the wake of the Anfal genocide. However, many researchers, political activists, and government officials have acknowledged that the US approach towards sanctions was focused on the end of the Saddam Hussein regime rather than the weapons inspections. In 1997, Secretary of State Madeleine Albright said, “We do not agree with those nations who argue that if Iraq complies with its obligations concerning weapons of mass destruction, sanctions should be lifted” (qtd. in Zunes 180; see also Von Sponeck 266). 

Though the regime initially cooperated with UNSCOM inspections, US policy continued to hold Iraqi people hostage as a bargaining tool for regime change despite the violence of sanctions against Iraqis. From 1990 to 2000, estimates of child mortality rates suggest that 350,000 Iraqi children were killed by sanctions, though at the time these numbers were believed to be higher. The under-five mortality rate increased from 56 per 1000 births to 131 per 1000 births under sanctions (Ali and Shah 1851; Cortright). Access to health and food resources in Iraq were fatally low for much of the population. Though Madeleine Albright infamously said that these deaths were “worth it,” by the mid-1990s, it was no longer possible to ignore the deadly impacts of sanctions on the Iraqi population (Mahajan). 

In 1995, the UN attempted to mitigate the impacts of sanctions on the Iraqi public by instituting the Oil-for-Food Programme (OFF), which enabled the Iraqi government to sell oil on the global market in exchange for food, medicine, and other humanitarian necessities. However, this program failed to alleviate the public health crises due to poor design, unequal regional allocation, inadequate budget, and corruption. Dennis Halliday, former UN Humanitarian Coordinator for Iraq, alleged that OFF “was never intended to actually resolve the humanitarian crisis,” but merely to stop it from worsening (Bennis and Halliday 36). The corrupted program primarily benefited the Iraqi regime, which had a large degree of control over OFF’s design and implementation. Numerous investigations indicate that the regime received direct kickbacks on oil sales through sympathetic or bribed third-party sellers. As Al-Jawaheri writes, “The cruel irony . . . was that Saddam Hussain and his henchmen . . . grew obscenely rich as a direct result of sanctions that were meant to punish them” (5–6). In the years following the failure of OFF, three UN officials resigned over the inhumanity of prolonged sanctions, including two UN Humanitarian Coordinators for Iraq: Dennis Halliday and his successor Hans Von Sponeck. Von Sponeck later stated that a critical and recurring failure was the UN’s inability to see its own sanctions regime as a factor in Iraqi human rights conditions (257).

Similarly, the UN continually failed to address the disproportionate impact of sanctions on women’s rights despite the issue being repeatedly raised throughout the policy’s duration. Paragraph 145 (i) of the 1995 Beijing Declaration and Platform for Action at the World Conference on Women asserted that governments and international organizations should “take measures in accordance with international law with a view to alleviating the negative impact of economic sanctions on women and children” (62). As previously stated, multiple UN reports concerning discrimination against women in Iraq emphasized that sanctions were the main obstacle to improving women’s rights (“Concluding Observations” 33; “Second and Third Periodic Reports” 8).

This overview of policy implementation illuminates the broader violence inherent in the sanctions program and the unwillingness of international governing bodies to address their role in maintaining that violence. It also makes apparent the salience of Georgis and Gewarges’s framework; the dehumanization of Iraqis renders invisible the bodily violence of sanctions in favor of the abstract and theoretical effects of policy. A critical reexamination requires not only the recentering of the Iraqi population who bore the effects of sanctions most directly, but a recentering of women as a core group most invisibilized in this history. 

A critical reexamination requires not only the recentering of the Iraqi population who bore the effects of sanctions most directly, but a recentering of women as a core group most invisibilized in this history.

The Lives of Iraqi Women Before Sanctions 

In order to understand the changes brought about by sanctions, it is important to first contextualize women’s lives and status in the pre-sanctions era, a period of complex changes for women’s rights in Iraq. Prior to sanctions, a number of legislative changes transitioned women from a private role to a public role and limited the control of male family members over women. Saddam Hussein often condemned the “bourgeois ideology which assumes that the first and last role of women is in the home” (Hussein 7). Speaking on women’s education in 1971, he said it would be “a crime . . . if women were deprived of their rights to freedom, education, and full participation in . . . the community,” (Hussein 7). This rhetoric was paired with increased resources and social programs that allowed women, especially poor women, greater access to education and work outside the home. Women’s increased role in public work and education was also supported by expansive kinship and neighborhood networks which shared responsibility for children and household tasks. However, while the state did engage in various projects that promoted women’s access to resources and status, these laws also increased the patriarchal control of the state itself over women (Al-Jawaheri 28).

In order to promote women’s roles in their political project, the state funded and controlled a women’s branch of the Ba‘th party, the General Federation of Iraqi Women (GFIW). Open only to Ba'thi women, the GFIW represented the experience of a small section of Iraqi women. Still, it did serve as a critical source of income for many women at the time. Some members were able to use the funds allocated by the state to mobilize Iraqi women, and the GFIW was often in tension with Ba‘thi leadership, pushing them on issues of women’s equality (Al-Ali, Iraqi Women 138). Although the GFIW played a key role in expanding women’s rights, its existence and actions in no way negate the violence of the state against women, ethnic minority groups, and political actors from opposition parties. Rather, the state’s promotion of women’s rights must be understood as an extension of its political framework; the state’s position changed based on political convenience and the formation of GFIW acted to contain feminist political advancements within the one-party state structure. In this way, the GFIW should be understood as an effort of state feminism, a process by which the state coopted feminist struggle in order to control its progress, while simultaneously suppressing other, non-state-sanctioned feminist activity.

Though the pre-sanctions era saw many gains for women, conditions created by the Iran–Iraq War and compounded by the Gulf War harmed women and complicated their social and economic roles. The eight-year Iran–Iraq War ended only two years prior to the start of sanctions, and the shifts in Iraq’s economy, family structures, and gender relations carried over into the sanctions period. Likewise, the 1990 Gulf War caused direct damage to the population and infrastructure of Iraq, impacting the country just as sanctions began. While it is impossible to fully disentangle these catastrophes, all of them reshaped women’s lives. The Iran–Iraq War contributed to a rise of women in the workplace as the majority of the male population was either conscripted or volunteered to fight in the war. As male relatives fought and died, women increasingly became the primary breadwinners. The state simultaneously lauded women as workers maintaining the nation and as mothers raising the new generation, emphasizing the importance of childbirth in the face of massive population losses (Al-Ali, Iraqi Women 168). These dual expectations often conflicted for women, who bore the burdens of keeping the nation together during wartime. 

Women’s experiences in the pre-sanctions era were highly variable, but many found new opportunities and access to resources that would be removed or limited under sanctions. The imposition of sanctions also worsened many crises for women that had started during the Iran–Iraq War. 

Employment

The sanctions era began just as Iraqi men were returning from war and searching for work. In response to this influx, Iraqi women were encouraged to exit employment and take up motherhood as their national role, a shift only further accelerated by the economic harm of sanctions. While there were few jobs available, any openings were likely to be taken by men (Al-Jawaheri 37). Women were pressured to return to domestic work through both the changing social dynamics and the elimination of key government programs that had supported women working in the public sphere. Socially, the role of women became “umm bait muhtarama, or the respectable housewife,” representing a sharp change from the rhetoric of the 1970s and 80s that celebrated women workers (Al-Jawaheri 10). 

On a national level, women were encouraged to resign or retire early, which was often forced by the termination of social programs such as free childcare and public transportation. Women had been the primary recipients of the welfare state more broadly and so were most affected by its collapse under sanctions (Al-Ali, Iraqi Women 188; Al-Ali, “Reconstructing Gender” 747). Iraq’s 1998 report to the UN on the Convention to End All Forms of Discrimination Against Women (CEDAW) discussed the impacts of sanctions on women’s work participation, stating that “the difficult economic conditions created by the comprehensive embargo have also forced large numbers of Iraqi women to . . . devote themselves to domestic work.” This report shifts the blame onto the sanctions but ignores that the regime was actively promoting the domestic role of women and removing social programs. In reference to childcare for women workers, the report notes that the number of facilities actually increased from 1987 to 1996 but ignores that the programs for subsidized childcare had ended under sanctions (“Second and Third Periodic Reports” 8). The collapse of the welfare state, combined with the erosion of extended family and neighborhood networks, meant that more women were forced to stay home and care for their children. The sanctions reduced economic opportunities for everyone, but the state and society worked to shift the loss of work onto women so as to preserve the opportunities for men, particularly by reducing state support for women workers. 

Political Participation

The GFIW, which had been a critical site of women’s political participation and source of well-paid work prior to sanctions, changed dramatically in the 1990s. Although other women’s political groups existed at the time, information on them remains limited as they had to hide their operations from the one-party state, which strictly policed political activities. Nevertheless, the GFIW provides insight into the regime’s control of resources under sanctions and how this disadvantaged many women.

One significant change under sanctions was the pay of GFIW employees. One employee named Soha reported that her salary was $320 USD per month prior to sanctions. However, during sanctions, her salary dropped to $3.50 USD per month (Al-Jawaheri 49). Many women like Soha, who had previously held a relatively privileged position as party members, were forced to take up informal work, such as sex work or selling goods, for secondary sources of income. The 1998 CEDAW report, speaking of women’s political participation, claimed that “any diminution in the role of women is due to the embargo and to their preoccupation with shouldering the burdens of the household” (“Second and Third Periodic Reports” 9). However, though the financial burdens of sanctions certainly did affect the role of women like Soha, other women within the GFIW reaped material benefits from sanctions. The GFIW saw not a unilateral loss of benefits, but rather an increased stratification between the top-ranking members, and the larger base of employees. In Soha’s own words: “Now there are a few women who gain from being employees here, while the rest get nothing,” (Al-Jawaheri 49).

The high-ranking members of the GFIW who benefitted under sanctions were, as Al-Ali and Pratt put it, “themselves part of oppressive political and social structures” (What Kind of Liberation? 53). Under sanctions, those women who had used the GFIW as a site for social mobilization were increasingly marginalized in the pay structure. At the same time, those closest to regime leaders received millions of Iraqi Dinars as well as “valuable gifts from the delegations.” These gifts were typically humanitarian aid, intended for the population, but stolen and distributed to friends of the regime, according to a GFIW informant (Al-Jawaheri 49). The stratification of wealth in the GFIW reflected the broader issues with state control of funds and programs during sanctions; Saddam and other leading party members gained vast personal wealth through criminal activities, including smuggling and bribery (Al-Jawaheri 5–6). Thus, the GFIW served as a microcosm for understanding women’s political access in Iraq at large and the implications of the one-party system during this time. Women lost avenues for social mobilization and access to work and pay, along with the rest of the Iraqi population. Women’s shifting status within the GFIW illustrates the importance of adding a class and political analysis to the gendered experience of sanctions. The shifts in the GFIW benefitted some women as much as they disadvantaged others. 

Education

Iraqi women also experienced a decline in educational opportunities during sanctions. Prior to sanctions, Iraq’s education system was advanced; education was mandatory from ages 6 to 12 for all children and was free at all levels due to the regime’s efforts to make education accessible in the 1970s and 1980s. By 1990, women’s education had increased rapidly; female enrollment in secondary school increased to 38.5%, and though young women came from families where most of their mothers were illiterate, the majority of students in higher education were women. However, a study of women in Iraq conducted before sanctions and published in 1990 suggests that, socially, education for women was perceived as a way to improve one’s status for marriage (Khayyat 197). Though the improvement of women’s education existed within a social context that limited women’s full participation, its rise in the decades prior to sanctions can still be seen in relatively positive terms; women (especially working-class women) had greater access to the resources needed to gain an education. 

Under sanctions, female education declined sharply, and class and public health improvements were effectively eliminated. By 2000, illiteracy rates among Iraqi women were at 71% for females ages 15–24. Though primary education remained mandatory, statistics show that over 1.5 million Iraqi girls eligible for primary school were not enrolled in the 2000–2001 school year. Female enrollment in secondary school dropped to 29%, lower than it had been in the 1970s (Al-Jawaheri 60–1). Although education remained technically free, certain school supplies were no longer covered, and many families could not afford to pay. Additionally, many young women were expected to make money for their families in the informal economy (often through begging or theft) and did not have the time or funds to attend school (Al-Jawaheri 60–1). The women that were able to attend school likely received a lower quality of education due to the increase in underfunded school facilities and underpaid teachers. The Iraqi blogger Riverbend wrote that university science classes could not obtain textbooks or necessary materials because they were banned under the sanctions (132; see also Al-Ali, Iraqi Women 192). In these ways, recent improvements that had made education more accessible to all genders and classes were effectively reversed under sanctions. 

The loss of subsidized educational resources had severe implications for both class stratification and public health. Working-class women and girls were kept out of education by the reconstruction of financial barriers. With regards to public health, studies have shown that in Southwest Asia and North Africa, education is a critical factor for improving women’s planning for childbirth and raising the age of marriage and first childbirth. Under sanctions in Iraq, fertility rates rose to 5.4 births per the average woman by 2003, nearly the global high, while child mortality and morbidity simultaneously rose to the highest regional rate (Al-Jawaheri 75). The collapse of women’s education cannot be disentangled from the public health crisis under sanctions, nor from the lasting psychological and physical trauma experienced by women who gave birth and lost children while experiencing malnutrition, anemia, or other health crises. Likewise, the violence of the public health crisis cannot be separated from the devastation of women’s education and work, the re-emphasis of women’s role as mothers, or the long-term psychological impacts on individuals. 

The violence of the public health crisis cannot be separated from the devastation of women’s education and work, the re-emphasis of women’s role as mothers, or the long-term psychological impacts on individuals.

Family and Marriage

Nuclearizing Family Structures 

The family structure of Iraqi society and the role of women in the family were affected not only by declining employment and educational opportunities but also by the medical impacts of sanctions, including the deaths of children. Under-five mortality in south and central Iraq were found to have increased from 56 per 1000 births in 1984–1989 to 131 per 1000 births in 1994–1999 (Ali and Shah 1851; Cortright). Case studies of Iraqi women show that the fear of child death had substantial social impacts on Iraqi women and the family experience. The impacts of these deaths on Iraqi families were particularly pronounced for lower-class families, who were more likely to experience child mortality (Al-Ali, “Reconstructing Gender” 746). To support repopulation efforts during the Iran–Iraq War, the government had emphasized the importance of motherhood and outlawed contraceptives—a ban which continued into the sanctions period. Although women were still encouraged to have many children, there was a greater reluctance to have children for fear that children would die or that limited resources would lead to malnutrition. Additionally, the mass casualties of Iraqi men during the Iran–Iraq War and the Gulf War and the following male economic migration created a large number of female-headed households—in the city of Basra, this figure was as high as 60% (Al-Jawaheri 22; Al-Ali, Iraqi Women 198–9). As women were encouraged to have more children, many became their children’s sole provider in an economy where they were discouraged from working. 

One such woman was Halimah, a 20-year-old war widow and mother interviewed by Al-Jawaheri, whose case demonstrates the effects of the disintegration of kinship and neighborhood support networks. Under sanctions, families shifted away from broader kinship networks and towards the importance of the nuclear family (Al-Ali, Iraqi Women 198–9). While the nuclear family may hold particular importance in Western conceptualization of modernization, it cannot be viewed as such in the Iraqi context. Indeed, in Iraq, the shift away from extended networks may have led to more oppressive patriarchal relations. In Halimah’s case, her neighborhood network of support no longer existed because everyone had become extremely poor under sanctions. “We feel we have been abandoned and that nobody can help us. We know we are forgotten” (Al-Jawaheri 84). Halimah’s desperate condition forced her to turn to her brother and brother-in-law for support, but both were highly aggressive and asserted control over her and her daughter. Yasmin Al-Jawaheri argues that women who lacked support from both the state and a broad family network under sanctions were further subordinated because they developed “high dependency ratio on a single male provider” (Al-Jawaheri 84, 97). Halimah’s case is one example of how the deterioration of broad family networks created more oppressive family relations for women. 

Marriage as Survival

Given the importance of support from a male provider for many women, marriage became increasingly crucial for young Iraqi women under sanctions. However, it also became harder to find a husband due to the gender imbalance in the population following the Iran–Iraq War. Hamdiya, a woman interviewed by Al-Ali, stated that, whereas it had once been considered taboo to either not married or to enter a polygamous marriage, “among my generation, there are many women who either did not get married . . . or became the second wife of someone” (Al-Ali, Iraqi Women 196). Polygamous marriages, which had been sharply reduced and condemned by the regime in previous eras, were revived in the 1990s. In a 1976 address to the General Federation of Iraqi Women, Saddam had stated the importance of “strengthening and expanding the conditions which prohibit polygamy” (Hussein 29). Nevertheless, polygamous marriages increased dramatically under sanctions, largely out of economic necessity (Al-Jawaheri 102). 

The desirability of a husband was no longer based on love and family reputation, but instead based almost entirely on whether he could provide for his wife. As such, the class dynamics of marriage also shifted. Increasingly, middle-class women from important families who had suffered under sanctions began to marry nouveau-riche sanctions profiteers, primarily Oil-for-Food contractors and oil smugglers, even though marriage below one’s family status had previously been very uncommon (Al-Jawaheri 53; Al-Ali, Iraqi Women 197). Money came to surpass family name in determining social status; however, the limited number of marriageable men who could provide economic protection also meant that many lower-class women were either not able to marry or were not able to use marriage as a source of economic protection. Middle-class and upper-class women focused heavily on marriage as a means of survival and were often forced into harmful or difficult marriages. Lower-class women were more likely to experience direct forms of gender-based violence or were forced into sex work for survival. These shifts in marriage expectations should be understood as both a classed and gendered impact of sanctions. 

Violence Against Women

“Honor” Killings and Domestic Violence

The phrase “honor” killing or crime denotes a particular circumstance; that is, the murder of women, typically by family members, as a reaction to the perception that the woman has “dishonored” the family. The acts that are considered “dishonorable” are rooted in restrictive heteropatriarchal social boundaries for women. Under sanctions, Iraq saw a revival of “honor” killings and domestic violence; economic crisis and war have both been well documented as key contributors to gender-based violence. The revival of “honor” killings in Iraq occurred not only on a popular level but was also encouraged by the state effectively legalizing “honor” crimes. In 1990, Saddam issued a decree granting immunity to men accused of committing “honor” crimes (Al-Ali, Iraqi Women 202). Though this ruling was appealed two months later, the law granted legitimacy to “honor” crimes beyond the scope of the law’s existence. The UN tracked an increase in “honor” crimes during the 1990s compared to previous decades: approximately 4,000 women and girls were murdered between 1990 and 2002 in so-called “honor” killings. It is unclear why this law was passed, though Al-Jawaheri and Al-Ali both suggest that it was a tactic to gain the support of conservative tribal and religious leaders in preparation for the invasion of Kuwait (Al-Jawaheri 113; Al-Ali, Iraqi Women 202). The regime’s need to acquire the loyalty of tribal leaders continued during the sanctions period, and men who killed female relatives to preserve family “honor” were regularly acquitted (Al-Ali, Iraqi Women 209). In general, the legal system favored those who committed “honor” crimes rather than the victims.

The rise in “honor” crimes contributed to real fears and changes in social dynamics for young girls. Zeinab, a fifteen-year-old who had lived almost all her life under sanctions, described the changes women had to make in daily life to prevent social criticism that could potentially damage a family’s “honor,” including conservative dress. She stated, “Most people are somewhat pressured to change their lives in order to protect themselves from . . . talk about family [honor]” (Al-Ali and Hussein 46). 

Domestic violence, too, increased as a product of economic insecurities. Both men and women encouraged and perpetrated this violence against other women; Al-Jawaheri interviewed one woman, 20-year-old Fatima, who was physically abused by her husband when she fought back against his plan to take a second wife from a wealthy family for economic benefit. Fatima’s mother-in-law encouraged the abuse and took control over her children. In her interview, Fatima said, “My children are not mine. They are hers” (Al-Jawaheri 112). Although it is difficult to analyze domestic violence in Iraq due to its taboo status, Al-Jawaheri believes that relationships like that of Fatima and her mother-in-law were increasingly common during sanctions. She suggests that older women sought a “stake in the system of domination” as opportunity for the family’s economic stability diminished (Al-Jawaheri 113). Increased violence against women was not merely a result of men’s economic stress, but of the broader stressors placed on the entire community. 

Violence Against Sex Workers

Related to the rise in “honor” crimes and domestic violence was the increased violence against those engaging in sex work. This coincided with a rise in sex work, which quickly became a critical source of income for many women, given the limited opportunities for work under sanctions. For the first time, Iraqi cities developed luxury brothels, the patrons of which were primarily profiteers and members of the regime (Al-Jawaheri 114). Given its complicity in the sex work sector, the regime initially supported, or at least failed to interfere in, the rising industry. However, beginning in 2000, the regime reportedly beheaded more than 300 people accused of engaging in or facilitating sex work. One such incident occurred in November 2000 when two sex workers in Baghdad were beheaded in front of their homes. This public murder was witnessed by several neighbors, including children who were on their way to school. Those living nearby said that the entire area was left in a “shocked state” (Al-Jawaheri 115). It was well known that the clients of these women had been high-ranking government officials. The populace perceived the act as a reassertion of control over women and the social order by the state. Among scholars, this attack on sex workers, like the legalization of “honor” crimes, is understood as an effort by the regime to gain the favor of tribal and religious leaders in a period of increased social conservatism (Al-Jawaheri 115; Al-Ali, Iraqi Women 200-1). The sanctions contributed to both a rise in sex work as a means of economic survival and a rise in social conservatism, which, in turn, punished women for these acts of survival. This form of violence, committed by the state against women whose “crimes” depended on the complicity of state actors, reveals a blatant double standard within the patriarchal state structure. Regardless of its role in promoting equal rights for women during previous decades, the state committed intense violence on women and their bodies during sanctions, actions which suggest that it has always been most interested in maintaining control over women. 

Regardless of its role in promoting equal rights for women during previous decades, the state committed intense violence on women and their bodies during sanctions, actions which suggest that it has always been most interested in maintaining control over women.

The Experiences of Women in Iraqi Kurdistan

Kurdish women experienced the violence of sanctions differently because of their position as a targeted ethnic minority. However, Kurdish women are not the only ethnic minority to face ethnic and gendered violence under sanctions. In fact, because of Kurdistan’s geographic separation and autonomy from Central and Southern Iraq, Kurdish women’s experiences are not necessarily representative of all ethnic minority women, although there is unfortunately little data on other minority ethnic communities. It should also be noted that many non-Kurdish ethno-religious minorities, including Yezidis, Assyrians, Chaldeans, Christians, and Turcomans, often identified themselves as Kurdish when no other option was presented, and many resided in the northern regions designated as Kurdistan (Graham-Brown 218). Ethnic minority women, like lower-class women, faced particularly difficult conditions under sanctions. 

Iraqi Kurdistan had long been a target of state violence as an ethnic minority region, including the Anfal campaign genocide. The UN did not view Kurdistan as the target of sanctions, but neither was the region exempt from sanctions. Kurdistan is sometimes described as facing a “double embargo” because of the impacts of both international sanctions and the Iraqi central government’s economic targeting of the region, including power blackouts and currency manipulation (Graham-Brown 222). However, Kurdistan also received a higher rate of international aid than the rest of Iraq, mainly due to an increase in international attention following the chemical attacks (Al-Ali and Pratt, What Kind of Liberation? 50). In addition to the aid influx, the experiences of women in Kurdistan were also shaped by differences in governance. The de facto establishment of the Kurdistan Regional Government (KRG) in 1992 allowed some regional autonomy, although the Iraqi state did not recognize Kurdish autonomy until 2003. Ultimately, both aid and regional autonomy did little to improve conditions for women, though they shaped the context in which women struggled for survival. 

Although Kurdish women had long been central to the Kurdish independence struggle, the growth of aid allowed them to participate even more in emerging civil society, strengthening women’s political organizing around issues of gender and violence. However, these women’s rights groups depend on the Kurdistan Democratic Party (KDP) and the Patriotic Union of Kurdistan (PUK) for their continued existence. The KRG did little to improve the position of Kurdish women and often actively worked against this goal. Zouzan, a Kurdish activist fighting against “honor” killings in the 1990s, stated that “both political parties, the PUK and the KDP, gave us a hard time. They really harassed us” (Al-Ali, Iraqi Women 207). Zouzan ultimately exiled herself and continued her activism from abroad because of this harassment. Despite the rise in humanitarian groups and women’s organizations, Iraqi Kurdistan experienced a marked rise in “honor” killings and domestic violence under sanctions, even higher than that of Iraq at large. Despite the fact that the “honorable motives” clause, which allowed perpetrators of “honor” crimes to justify their violence on grounds of honor, was removed from Kurdish law in 2002, Kurdish women’s rights activists still report that these crimes go largely unpunished (Al-Ali and Pratt, “Conspiracy of Near Silence” 36). Just as Saddam’s legalization of “honor” crimes was an attempt to consolidate support from conservative tribal leaders, so can the KRG’s failure to prosecute these crimes be seen as an attempt to consolidate power in a newly formed autonomous parastate (Graham-Brown 218).

In addition to a rise in domestic violence and “honor” killings, Kurdistan experienced high rates of female-headed households, exacerbated by recent ethnic violence and the disappearances of Kurdish men. Some relief workers estimated between 3000 and 3500 female heads of households, or “Anfal widows,” in the Barzan valley alone (Graham-Brown 237). Many women who lived through Anfal had been raped, and over 700 girls were kidnapped and sold to neighboring countries as a part of the violence; the Anfal widows suffered compound traumas to their bodies and their families, as well as social ostracization for losing their “honor” as survivors of rape (Al-Ali and Pratt, What Kind of Liberation? 44). These widows’ struggles were perhaps somewhat mediated by the large concentration of relief workers, many of them focusing on supporting female headed households. Still, as with honor killings, widespread aid did not seem to correlate with widespread relief. As late as 2007, 83% of these women still had housing problems (Al-Ali and Pratt, What Kind of Liberation? 43). 

Conclusions 

An Immeasurable Violence

The experiences of Iraqi women presented in this paper only begin to illustrate just how many aspects of women’s lives were affected, directly or indirectly, by sanctions. In some ways, the growth of women’s access to rights and resources was paused to address the broader cause of sanctions, such as in the context of the General Federation of Iraqi Women, where economic conditions made it difficult for women to continue their political projects. In other arenas, such as employment and education, the policies that had allowed women greater access were reversed just as the rhetoric around women’s role in society changed drastically. Even beyond issues of access, the sanctions caused immeasurable physical and psychological violence to women through the rising rates of child deaths, domestic violence, and “honor” killings. The types of impacts felt by women varied greatly based on class, ethnicity, and party affiliation, but ultimately women as a group were affected in devastating, gender-specific ways. Batuol, an Iraqi social scientist interviewed by Al-Jawaheri, described this well: “It’s hardly surprising that economic deprivation and impoverishment have caused such wide-scale social distortion. The Iraqi society today is a masterpiece produced by the United Nations sanctions. . . . It’s true that the whole society is suffering, but it is women who are the prime victims” (Al-Jawaheri 117).

The feminist framework of this study seeks to dismantle the popular narrative that the sanctions in Iraq were a nonviolent alternative to war by situating the violence against the most marginalized Iraqi populations as a primary, rather than a secondary effect of sanctions policy.

This analysis also fits into a broader, ongoing conversation about the violence of international sanction policy. The feminist framework of this study seeks to dismantle the popular narrative that the sanctions in Iraq were a nonviolent alternative to war by situating the violence against the most marginalized Iraqi populations as a primary, rather than a secondary effect of sanctions policy. This recentering makes clear that the United Nations and the international community cannot prevent human rights violations end discrimination against women while continuing to enforce and support economic sanctions as they have historically been implemented. 

Beyond Sanctions and the Revolutionary Present

In many ways, the conditions for Iraqis, and Iraqi women in particular, have only worsened since the end of sanctions. The fragmenting of the country by endless imperial warfare, ISIS, and Iraqi state actors has kept Iraq in a state of continual violence for at least 40 years, leaving its people with little chance to recover. It is impossible to extricate the history of sanctions from the compounded destructions that followed, particularly the 2003 US invasion and ongoing war. For the young people of Iraq, now a majority of the population, their only reality has been life under imperial control. It is no wonder, then, that in October of 2019, Iraqis of all ages took to the streets to fight for their rights to live, utilizing the slogan: Nureed Watan—– We Want a Country (Abdul Hadi). The October Revolution focuses in part on the fight against foreign interference in Iraqi self-governance, particularly Iranian interference, which flourished after the 2003 invasion; Iranian control of the Iraqi economy has only intensified since Iran was placed under US sanctions (Risen).

Despite the socially conservative opposition to women’s organizing, many young women and girls participate in the Revolution. In addition to facing state violence, women revolutionaries have faced threats and disapproval from families, and several female activists have been abducted or killed for their involvement (Mustafa). And yet these women continue to show up for national liberation—they too want a country. They understand their participation as directly related to their oppression as women; women revolutionaries explained that the poor conditions of their education and the ostracization of women in political movements are key motivators for their participation, alongside national goals (Mustafa). Given the history outlined in this study, it is clear how interrelated the goals of national liberation are with those of gender liberation. It is impossible to separate these ongoing histories from the international sanctions policies that have contributed to the further marginalization of women and other disadvantaged populations. The October Revolution serves as a powerful example of a people attempting to heal their country and of the women revolutionaries challenging the gendered violence of international policy. The people of Iraq, Iran, and many other countries in the Global South are risking their lives to revolt against the conditions that sanctions have helped create. In response, the Global North must center the voices and follow the lead of the people whose daily existence is defined by the violence of international policies—only then can we reject and reconceptualize the type of policy that dismisses human suffering as a justifiable sacrifice. 

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Definitions

Abu Ghraib: During the Iraq War, members of the United States Army and the CIA committed a series of human rights violations and war crimes, including torture and murder, against detainees in the Abu Ghraib prison in Iraq. The abuses came to public attention with the publication of photographs by CBS News in April 2004.

Third World women: A term used by Mohanty to refer to women living in the exploited and underdeveloped regions of the world that had and continue to experience colonization by the “First World” or the “West.” Though the term “Third World” is no longer commonly used, its usage here comes from the Third World feminist movement, sometimes called postcolonial feminism or transnational feminism, which centers Third World women’s anti-colonial struggles. 

Gulf War: This war began when Iraq invaded and attempted to annex Kuwait in 1990. The international community, led by the US, responded with international sanctions and military invasion. The war ended less than two months after the start of US involvement in 1991.

Global South: A term used to describe regions of the world that have been underdeveloped and subjected to colonization from the Global North. In the contemporary context of neoliberal globalization, the Global South is typically a site for resource extraction, while the Global North is primarily a site of resource consumption. These terms describe geopolitical power relationships rather than geographic relationships.

Anfal genocide: A series of attacks on Iraqi Kurdistan from 1986 to 1989 which killed up to 182,000 Iraqi Kurds and several thousand Assyrians.

“Honor” killing or crime: This term has been criticized for many years by Southwest Asian and North African feminists. Given the feminist framework of this paper, I am inclined to agree with them: there is no “honor” in killing. Although the term leaves much to be desired, it also describes a particular type of crime that cannot yet be described with other terms. I therefore use quotations to separate this phrase from ideas that women’s bodies and actions are responsible for a family’s honor.

Invasion of Kuwait: In August of 1990, Iraq invaded and annexed Kuwait. This invasion provided the pretext for US invasion during the Gulf War.

Kurdistan Democratic Party (KDP) and the Patriotic Union of Kurdistan (PUK): The two dominant political parties in the Kurdistan Regional Government (KRG) which were, until 2003, strongly oppositional and fought each other for maximal control.

Nureed Watan: The translation given in the cited article is “We Want a Country.” However, I suggest that “watan” translates more directly to “homeland” as the word implies a sense of unity and belonging that cannot be adequately conveyed in the English word “country.”

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References

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Author

Samia Saliba graduated from Western Washington University in March 2020 with a B.A. in History and minors in Spanish and Arabic & Islamic Studies. She was named as the WWU History Department's Outstanding Graduate for 2020. She currently works as an educator through the Upward Bound program. Her creative writing has been published or is forthcoming in Sycamore Review, Vagabond City Lit, Mizna, and elsewhere.

“Out of the Way”: Property and the Subversive Construction of Space by Enslaved People in the American South

By Hannah Swartos

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Abstract

The accumulation of edible and material property by enslaved individuals is recognized by historians and archaeologists as an act of radical subsistence and profound, everyday resistance. Used as a container for property, the subfloor pit in slave quarter architecture created a space for both individual and communal autonomy within the oppressive environment of enslavement. The structure is therefore a valuable contribution to the study of such complicated topics as ownership, privacy, and visibility in the slave quarter, adding both physical and social dimensions to the resulting complexities of property possession. Vulnerable to surveillance by patrols and enslavers, and often used in multi-family households, subfloor pits could hardly be considered "private" but nonetheless offered practical, communal, and individual value to the routines of enslaved individuals and families. In the floors of their dwellings, enslaved people constructed a physical and social underground within the landscapes of power and resistance on American plantations.

Keywords

Slave resistance, slave property, plantation architecture, archaeology of slavery

Introduction

The literature on African American history experienced a fundamental and necessary expansion when the historical community recognized resistance as a prominent component of enslaved life in the American South. Following the publication of works such as Herbert Aptheker’s 1943 book American Negro Slave Revolts, and largely in response to John Blassingame’s The Slave Community: Plantation Life in the Antebellum South, dominant historical depictions began to move away from portrayals of enslaved people as “the generally contented, racially inferior subjects of paternalistic planters [plantation owners]” (Shapiro 53). An initial focus on active and armed forms of resistance was soon accompanied by a growing interest in the domestic quarters as the setting for more nuanced and subtle forms of subversion. In particular, the accumulation of edible and material property has now been recognized as one of the most crucial components of subversion and autonomous action by enslaved people (Morgan, Penningroth). Property, whether crafted, cultivated, or traded, could feed a family, transform personal routines, and foster an expansive and dynamic economy within enslaved communities.

To accommodate and encourage property acquisition, enslaved people merged a series of time and space manipulations with complex social ties and exchanges, of which the subfloor pit is one result. The subfloor pit is the literal underground, a quasi-hidden and often subversive space functioning effectively beneath the extremely regulated and surveilled environment of the slave quarters. Enmeshed within the subversive domestic landscape and embedded beneath the charged architectural framework of enslavement, the subfloor pit emerges as both a critical accessory to means of property accumulation as well as a contributing discussion point for the study of such complicated topics as ownership, privacy, and visibility within the slave quarter. The practices of property accumulation among enslaved people and the social implications of such practices are remarkable in themselves, but the subfloor pit adds another layer to the resulting complexities of property possession by enslaved people. As containers for the products of acquired and cultivated property, subfloor pits occupied a unique position within the so-called “geography of resistance” (LaRoche 87), functioning almost completely out of view below ground, within the subtleties of the slave quarter.

To situate shallow holes in the ground within discussions of power upheaval and subversion may appear overly emphatic, presenting a seemingly unlikely addition to the discourse on the resistance of enslaved people. Through the construction of subfloor pits, however, enslaved people solidified the slave quarter as a prominent environment of resistance against an oppressively constructed and regulated architectural setting. In Back of the Big House: The Architecture of Plantation Slavery, John Michael Vlach argues that enslavers used the architecture of the slave quarters not only to house their workforce but also to reinforce bondage as the primary characteristic of African American identity through a regulated and restricted manner of living for those enslaved (165). By constructing a more personalized structure within an imposing space, enslaved people acted in opposition to this attempt at environmental and psychological regulation. 

Philosopher Henri Lefebvre speaks to the construction of abstract space in the capitalist landscape in his article, “Space: Social Product and Use Value,” but his sentiments apply well to the concrete landscape of slave architecture. He writes, “To change life means nothing if there is no production of an appropriated space” (Lefebvre 186). The social dynamics inherent to the nature of space result in assigned spatial constructs, “administratively controlled and even . . . policed” (Lefebvre 186) by hegemonic powers. In an attempt to disrupt such constructs and upset the weighted balance of enslaved-enslaver negotiations and power shifts, enslaved people added an accompanying structure to autonomous practices of property acquisition through the construction and use of subfloor pits. As assistants to and containers for methods of subsistence, subfloor storage areas reflect attempts by enslaved people to infuse the domestic environment with autonomy, personal choice, and community organization, elevating the subfloor pit to a deserved place among broader landscapes of resistance.

As assistants to and containers for methods of subsistence, subfloor storage areas reflect attempts by enslaved people to infuse the domestic environment with autonomy, personal choice, and community organization, elevating the subfloor pit to a deserved place among broader landscapes of resistance.

Property Accumulation in the Slave Quarter

Historians such as Philip Morgan and Dylan Penningroth have created a body of work that places the acquisition of property by enslaved people at the forefront of autonomous practice and resistance. Integral to this study is an analysis of the conditions that allowed for property ownership among enslaved people as well as those that made the procurement and storage of property extraordinarily difficult. Property included edible produce and raised animals, but also extended to material goods acquired through craftsmanship, trade, or theft. Enslaved people were not legally permitted to own property, but property accumulation in the slave quarter nonetheless instigated a complex series of social relations and autonomous activity (Penningroth, Claims of Kinfolk 107). To an extent, many plantation owners even allowed their enslaved workers to accumulate certain material goods and rarely exercised their legal right to claim the property of those enslaved. Hercules LeCount, a formerly enslaved man, argued that his previous enslaver “did not own or even claim a cent’s worth of . . . [his property]” while Henry Stephens, another enslaved man, “never heard of a master’s claiming property that belonged to his slaves” (Morgan 410). The proliferation of property ownership by enslaved people shaped what scholars have labeled the “internal economy” of enslavement (Berlin and Morgan 3).

Ira Berlin and Philip Morgan identify two prominent and interrelated economies within the system of enslavement: “one organized by and for the master, although contested and constrained by the slaves; the other by and for the slaves, although contested and constrained by the masters” (Berlin and Morgan 2). To be sure, the developing internal economy among enslaved individuals was subjected to the constraints of environment and condition, and planters exerted control over this aspect of enslaved life to the extent that they were able; yet, despite restrictive conditions, enslaved people continued to grow this “internal economy” by way of trade, cultivation, and craftsmanship within and between individual enslaved communities. Outside of, or rather, alongside and between the work they were forced to do, enslaved people built a functioning and dynamic system of trade and production that became a foundational component of their evolving culture. 

The economy of the “in between” was accompanied by an “underneath,” a space in which material items and food were stored in a semi-secluded fashion by enslaved people. Artifact and botanical assemblages have often been found in subfloor pits during archaeological excavations, but, as Patricia Samford outlines in her book, Subfloor Pits and the Archaeology of Slavery in Colonial Virginia, determining their use and context is difficult. Presumably, if material property was valuable to an individual or family, the odds of it being left behind in a pit are unlikely, except perhaps in the case of an emergency, such as a fire (Samford, Subfloor Pits 142). This is the prominent, paradoxical issue in relying on archaeological evidence to support the storage of property in subterranean storage structures: “the very nature of using a subfloor pit for storage of personal possessions hinders the ability of archaeologists to definitively assign this function through artifact analysis in most instances” (Samford, Subfloor Pits 142). Interpreting food remains holds similar difficulties; it is difficult to determine whether remains or items were stored in pits intentionally or tossed in as refuse.

Archaeological evidence of stored property must therefore rely on additional primary support. Though narrative evidence of material property storage is limited, the storage of edible property is well-documented. Narratives by previously enslaved people are particularly rich with references to the storage of sweet potatoes, perhaps the most important and widely cultivated crop in the gardens of enslaved people. Zenia Culp, who was previously enslaved, writes that her family “would dig a pit and line it with straw and put the tatoes in . . . [to] keep them from rotting” (68) Hidden away in the dark of a fireside hearth cellar, a good harvest of sweet potatoes could last through the winter, protected from dampness or chill, and even be banked for the next spring’s seeds. In a description of his childhood home in a plantation slave dwelling, Booker T. Washington remembered:

There was no wooden floor in our cabin, the naked earth being used as a floor. In the centre of the earthen floor there was a large, deep opening covered with boards, which was used as a place in which to store sweet potatoes during the winter. An impression of this potato-hole is very distinctly engraved upon my memory, because I recall that during the process of putting the potatoes in or taking them out I would often come into the possession of one or two, which I roasted and thoroughly enjoyed. (Washington 9)

In an otherwise bare and basic space, Washington’s family built a practical addition that facilitated years of simple routine. The storage of sweet potatoes may hardly seem revolutionary, but in constructing this underground space, the Washington family appropriated and amended their given environment to make it, even ever so slightly, their own. 

Irish potatoes and a variety of vegetables, as well as nuts and grains, were also stored beneath enslaved people’s cabins. In one interview conducted by the Works Progress Administration (WPA), Sylvia Watkins remembers how she would “raise up a plank” to collect potatoes to roast in the cabin’s large fireplace (Watkins 77). In another, Charlie Davenport recalls his time with the other enslaved children on the plantation: “Us little tykes would gather black walnuts in de woods an’ store fem under de cabins to dry” (Davenport 34). The stored nuts would be kept for future consumption, while their hulls might be used to dye fabric (Avery 23). Archaeological evidence supports these accounts; macroplant analysis by Leslie Raymer at Thomas Jefferson’s Poplar Forest estate revealed the presence of fruit seeds, possibly stored for planting; walnut shells; beans; and grains in excavated subfloor pits (Heath and Bennett 49). Additionally, enslaved people’s heavy reliance on wild food is evidenced in part by the recovered remnants of turtle, pigeon, squirrel, and other wild animals found in subfloor pits (Samford, “Engendering Enslaved Communities” 162). Stolen food, too, could be stored in pits. When apportioned rations failed to adequately feed Lula Jackson’s family, or when they grew tired of eating the same foods, Jackson recalls that the overseer and plantation owner “never could find my grandfather’s meat,” so well was it hidden beneath the cabin’s floor (Jackson 12).

When used as a root cellar, the subfloor pit’s value as a store for cultivated, foraged, or hunted property is best viewed through the rare potential for variety that it offered. Certainly, there were instances of extreme hunger on plantations, and the extra calories provided by a year-round supply of stored goods would contribute greatly to minimal rations. However, enslaved people not only found ways to supplement rations with their gardens and the accompanying cellars but also created within their oppressive environment unique opportunities for personal choice. Harvested or foraged food could be immediately consumed or traded, or they could be stored away to experience those same benefits later in the year. An armful of sweet potatoes might be pulled up from the cellar for a late winter meal, or a bundle of vegetables offered out of season might act as valuable trade items with plantation owners and other white Southerners. At Thomas Jefferson’s estate, “much of the produce purchased from Monticello slaves was out of season: potatoes were sold in December and February, hominy beans and apples purchased in April, and cucumbers bought in January” (Hatch 14). Root cellars provided the space for a personally crafted variety, created by enslaved people as they grew, hunted, or stole, and then stored.

The kinds of material property recovered from subfloor pits include items such as clothes, buttons and coins, tools, and what has been interpreted by some historical archaeologists as shrine assemblages (Samford, “Engendering Enslaved Communities” 163). To supplement these archaeological findings and the limited narrative insight into the storage of material goods, archaeologist John H. Sprinkle looks to the possessions and storage methods of Charles Cox, who was previously enslaved on the Whitehall Plantation in Anne Arundel County, Maryland, to determine the potential contents of subfloor storage pits. When a fire burned down the plantation’s grist mill, the chest where Cox kept his most precious belongings was mostly destroyed. Cox kept “his best clothes” inside the chest (Sprinkle 92), as well as other gifted and acquired items, and when the mill burned down, he spent several days looking for remnants of buttons or coins, expressing extreme remorse at the loss of his property. “If the contents of Cox’s chest are viewed from an archaeological perspective,” writes Sprinkle, “that is, in terms of what material culture would have survived in an archaeological context, then the assemblage resembles descriptions of slave ‘root cellars’” (Sprinkle 92). Cox’s mill chest functions similarly to a subfloor pit in that, while it was not exactly hidden or indestructible, it still offered a self-constructed space in which to keep and protect valuable personal possessions. 

Surveillance of Slave Quarters

While evidence suggests that subfloor pits were indeed used by enslaved people to store property, scholars debate the significance and reasoning behind this particular kind of storage. Why keep personal or communal property in underground spaces as opposed to other methods of storage, or instead of leaving material items out in the open? A first assumption, one that Richard Kimmel deems “problematic,” might perceive subfloor pits as places of concealment (Kimmel 104). Evidence and accounts that portray cellars and pits as places of hiding certainly exist, particularly in instances of stolen food. To alleviate his extreme hunger as an enslaved person, Charles Grandy stole chickens from his enslaver’s roost and ferried them back to his cabin, dodging the punishment of patrol squads by slipping the birds under a trap door in the floor (Grandy 116). Similarly, the Overton children remembered watching their mother hide entire hogs beneath their home (Overton 267). In exceptional cases, humans were hidden in subfloor storage areas. William Henry Singleton describes in his memoir his remarkable experience as a young runaway hiding in his mother’s cabin. Singleton spent three years hiding and sleeping in his mother’s underground storage space, which was “not exactly a cellar, but a hole dug out to keep potatoes and things out of the way” (Singleton 39). In another narrative, Gus Smith recalls an occasion when Civil War guerilla soldiers arrived at his plantation to kidnap enslaved people to sell “down South” (Smith 283). Smith, his family’s youngest boy, watched his mother push his older brother beneath their cabin’s floorboards as the soldiers entered the house.

The stories of Singleton and Smith, however, are extraordinary cases, rare and dangerous instances where enslaved people managed to defy the high-surveillance environment of Southern plantations. As Walter Johnson describes in River of Dark Dreams: Slavery and Empire in the Cotton Kingdom, the big house, or plantation owner’s house, looked over the slave quarters to enforce the enslaver’s surveilling gaze upon the enslaved and to incorporate the realms of the enslaver and the enslaved into one (232). Slave quarters were often close to the big house or placed along main paths and thus easily observable. Although a below-ground storage space may have offered some invisibility, concealing items or people inside them for long periods would have been almost impossible. Excavation of the Utopia plantation site at Kingsmill had remnants of a hinged door that could have been locked (Fesler 196), but most cellars would have been at least partially visible, and all were subject to searches by enslavers or patrollers. The power of enslavers in searches was, as Walter Johnson describes, “amplified” by the use of horses and dogs (222), animals that reared and barked wildly, adding an additional threatening and visceral dimension to the punitive aspect of enslavement and attempts at hiding. Enslavers assured that punishments of their enslaved workers were often physically excruciating and personally dehumanizing, by way of severe whipping, branding, or beating (Lewis 779). Enslaved people who attempted to hide themselves or their stolen goods in such an obvious place would have wrestled with the consequences of being discovered, consequences which included punishment and violence perhaps too severe to justify the action.

The restrictive and highly surveilled environment of the slave quarters suggests that any sort of domestic structure or activity, including subfloor pits, would likely have been known to plantation owners. An example of planter knowledge of slave storage spaces can be found in a journal entry of Colonel Landon Carter, who recounts the search through his plantation’s slave quarters for a stolen butter pot, during which “all their holes and boxes” were inspected until the missing pot was found in a loft space (Carter 495). In the case of stolen goods, an enslaved person’s cellar likely would have been the “easiest and most obvious place to search . . . [and] because each pit could be associated with a particular individual or group of individuals, blame for any theft could easily be assigned and punishment administered” (Samford, Subfloor Pits 140). In most cases, then, subfloor storage areas were unreliable hiding places. If planter knowledge of subfloor pits was almost certain, the question arises as to whether it is still appropriate to speak of “privacy” when analyzing the significance of these underground structures.

Security, Community, and Individualization

Penningroth identifies three threats to the security of enslaved people’s property: “theft, masters’ legal prerogatives, and the persistence of shared property interests among slaves” (“Slavery, Freedom” 418). The complicated notion of “ownership” by enslaved people, themselves “owned,” suggests that enslavers “posed a more serious threat” than community conflicts (Penningroth, “Slavery, Freedom” 418), but, as few enslavers seem to have enforced their legal hold over enslaved people’s property, and given the noted difficulties of concealment from enslavers, several scholars have made an alternative argument. Samford and Garrett Fesler, among others, hypothesize that the subfloor pit functioned as a sort of “safe-deposit box” (Samford, Subfloor Pits 141), a “design solution employed by the enslaved . . . to protect their own possessions from theft by fellow slaves” (Samford, Subfloor Pits 140).

However, enslaved individuals would have had even more awareness of their own structural environment than their enslavers, so the argument that subfloor pits would have been used to protect property from the eyes of fellow enslaved people is perhaps just as unsteady, allowing, of course, for exceptions. This analysis also sits slightly at odds with other studies on space development and property acquisition in slave quarters, most notably Penningroth’s work in The Claims of Kinfolk: African American Property and Community in the Nineteenth-Century South. The idea of “hidden property” conflicts with the notions of community property interests and gain Penningroth explores in depth. “Part of property’s value for slaves, apart from its capacity to be used or consumed, lay in the social relationships it embodied” (Penningroth, “Slavery, Freedom” 418). Acquiring property rarely happened on one’s own and was often successful only when enslaved people enlisted the help of others to work for them as a means of gaining extra time (Penningroth, Claims of Kinfolk 80). “Most slaves got their property by drawing on their social relationships with each other,” looking to family members or neighbors for assistance (Penningroth, Claims of Kinfolk 82). Enslaved people obtained property often as a result of multiple people's efforts and interests, complicating the idea that security against fellow enslaved people would have been of primary concern. Shared interests often led to shared storage, and cabins with multiple families would have had a variety of shared property; enslaved people even “permitted their neighbors or relatives to store property with them in their cabins” (Penningroth, Claims of Kinfolk 95).

Public recognition was also integral to this dynamic; visibility of property was essential to the development of ownership. Penningroth’s key question in The Claims of Kinfolk is framed not as, “To whom does the property belong?” but instead as, “How do you know to whom the property belongs?” (Penningroth, Claims of Kinfolk 12). Samson Bacon, a previously enslaved man, explains, “I know it was his because every man on one place know every other man’s property” (Penningroth, “Slavery, Freedom” 420). An object only became property through public association and display, says Penningroth, and ownership was only possible because “property was enmeshed in several overlapping, sometimes competing, social relationships” (Penningroth, Claims of Kinfolk 108). The legal system which prevented official ownership, as well as the imposed status of enslaved people themselves as “owned,” prompted them to develop an adjusted system of ownership in the slave quarter, one that was based instead upon public acknowledgement and shared property interests. The concept of individual “privacy” fits uncomfortably within this context, and the word itself seems increasingly inappropriate. Storage of personal goods was an important component of choice and property accumulation in the enslaved community, but if Penningroth’s study of property relations is considered, then the complexity provided by the difficulties in acquiring and keeping property, as well as the social dynamics in which property was entrenched, requires a word better fitted to the setting, as well as a modified lens of study.

The legal system which prevented official ownership, as well as the imposed status of enslaved people themselves as “owned,” prompted them to develop an adjusted system of ownership in the slave quarter, one that was based instead upon public acknowledgement and shared property interests.

Because families and groups of individual enslaved people worked together to “overcome the difficulties involved in acquiring and keeping property in the close living arrangements of the quarters,” pits might be viewed less as a space for hiding from fellow enslaved people and more as a structure that helped to organize ownership and shared property interests within the limited space of the slave quarters (Penningroth, “Slavery, Freedom” 416). In discussing property storage and separation, Penningroth notes the testimony of Samuel Fuller, a formerly enslaved man, who recalls, “I knew it was [Dargan’s] property because it was on his side of the room” (Penningroth, Claims of Kinfolk, 97). Essex Dargan, another enslaved man on the same plantation, explains that, while he shared a space with his wife and her parents in which they stored “several hundred pounds of bacon in the cabin,” the parents’ bacon “was all separate from mine” (Penningroth, Claims of Kinfolk, 96-7). The accounts of enslaved people quoted in Claims of Kinfolk and elsewhere make clear that, while property interests were inextricably linked to public display, organization and ownership distinction were still important. By expanding the potential for storage and organization into the underground, enslaved people manipulated the constrictive dimensions of the imposed living quarters to fit the realities and activities of enslaved life. The relationships and interactions inherent to property acquisition required an accompanying construction of space to accommodate the structural needs of the slave quarter’s dynamic social setting.

Root cellars and storage pits were a hybrid of individual and community constructed space in an environment where it was extraordinarily difficult to achieve either.

Although the community interactions which represented enslaved people’s property somewhat discount the value of subfloor pits as “private” spaces, the significance of underground storage need not be diminished. Root cellars and storage pits were a hybrid of individual and community constructed space in an environment where it was extraordinarily difficult to achieve either. John Michael Vlach, in discussing the organization of the plantation, writes: “slave quarters were only incidentally meant as residences; they were, foremost, the planters’ instruments of social control” (165), a way to further the herd treatment of enslaved people as a homogenous collective, rather than a group of individuals. Enslavers used the structure and organization of the slave dwellings to reinforce the inferior status inflicted upon those enslaved, creating a space in which enslaved people were merely expected to live “quietly without challenging the plantation system” (McKee 200). The proximity of the slave quarters to the main house or overseer’s lodgings, combined with constrained schedules and dehumanizing tactics, should have provided few opportunities for individualization and the development of subsistence practices. Any personalization of living accommodation, therefore, acts in direct subversion to the homogenizing efforts of the system of enslavement and its enforcers. Enslaved people created subfloor pits in order to store shared and individual goods, fulfilling a practical need while also crafting a container for the products of determined attempts at semi-autonomous economic and social activity.

Conclusion: Subfloor Pits and the “Geography of Resistance”

The subfloor pit, subtle and small as it may be, is a product of space re-appropriation, the kind of which, Lefebvre argues, is necessary to make significant and meaningful change to the conditions of life that surround a person. Enslavers may have set innumerable measures of control and restriction upon enslaved people, but enslaved people just as readily responded with subtle or overt adjustments of subversion. The subfloor pit was a container for property and the choices and autonomy that came with that property, in an environment where enslavers attempted to prevent all three. Because enslaved people purposefully constructed this spatial manipulation within such an oppressive environment, the primary significance of subfloor pits is perhaps found not among the topics of anonymity and hiding, but among their opposites. Enslaved people increased the space they occupied by expanding into the underground, despite an environment crafted by the enslaver to enforce as limited a life as possible. The imposed architecture of the slave quarter was inadequate for supporting a meaningful and productive life but, in a quiet and subtle way, enslaved people’s construction of subfloor pits shifted the domestic landscape to extend their autonomous practices. 

The “carceral” environment of enslavement, as Walter Johnson describes, includes two acting landscapes: the plantation and its surroundings (228-234). The senses factor heavily in Johnson’s descriptions of the interacting, yet distinct, settings. The plantation enforced an imposing visual landscape which surveilled enslaved people, its structures symbolically enforcing the bondage of African American laborers (Johnson 232). Meanwhile, in the surrounding forests and swamps, Johnson highlights the auditory senses relied upon by enslaved people as they foraged and hid, often under the cover of night. The sound of horses’ hooves and barking patrol dogs helped to shape this external landscape that enforced the restrictive and punitive nature of enslavement (Johnson 232). Cheryl Janifer LaRoche also highlights the terrifying elements of the lands surrounding the plantation, portraying in dualistic relation to its status as a landscape of potential freedom in her book Free Black Communities and the Underground Railroad: The Geography of Resistance (87-102). 

LaRoche’s “geography of resistance” focuses on the larger landscape surrounding the dominating plantation setting, but the study of subfloor pits suggests a third landscape that existed within that of the plantation but with a distinctive set of activities and interactions that warrant separate recognition. While Johnson’s landscapes regulate and often overwhelm through the internal senses, subfloor pits instead acted largely as a symbol of actions within the domestic landscape of enslavement. Beneath the floors of their cabins, enslaved people placed the products of trade, cultivation, and handiwork, all of which contributed to a highly dynamic environment that, while often operating in close proximity to the main house, was curated wholly by enslaved people. In the discussion of place-based factors of enslaved resistance, the architecture of enslaved life stakes its claim to significance among a set of overlapping landscapes, each with their own parameters of restriction and resistance. 

Resistance, in this instance, takes a much different form than the images of visible conflict and energetic opposition which the term might usually conjure. Several scholars, including the acclaimed historian Robin Kelley, have argued for a radical shift in the historical study of resistance by oppressed peoples. In his study of the resistance politics of the Black working class in the United States, Kelley explores the ways in which subversion is carried out through everyday forms of resistance. These acts, whether intentionally subversive or not, “have a cumulative effect on power relations” between oppressors and the oppressed (Kelley 8). By using subfloor pits as hiding places for stolen goods or hidden family members, enslaved individuals exhibited the elusive “guerilla” acts of resistance that Kelley describes in depth—evasive and largely invisible daily acts of direct subversion (Kelley 7). Yet, even though food and property storage are rarely described using explicit reference to resistance in the narratives of formerly enslaved people, the subfloor pit stands as a subversive structure chiefly through the practical uses for which it was primarily constructed. By employing the structure for everyday acts of autonomous activity, enslaved people worked within the sphere of day-to-day resistance that functioned outside the sphere of organized or institutionalized efforts. As Kelley argues, the “margins of struggle” (4)—the subtle acts of survival and subversion which often occur without fanfare—are a fundamental component of the study of resistance. The subversive qualities of subfloor pits are unique, but the structure fits well within the study of elusive, everyday tactics which subverted the oppressing efforts of enslavers.

To take up space, to create space, in an environment where life was specially constructed to prevent enslaved people from forming any sort of distinctive life or identity, was subversive.

To take up space, to create space, in an environment where life was specially constructed to prevent enslaved people from forming any sort of distinctive life or identity, was subversive. When enslaved people dug subfloor pits, the result was an accompanying container for acts of subsistence and, therefore, resistance. In the imposed, oppressive environment of enslavement, the presence of subfloor pits indicates an attempt by enslaved people to move beyond what Johnson calls the “material and spatial condition” of enslavement (210) to form an autonomous space within the slave quarter—a structure of semi-concealed subversion functioning practically underneath the enslaver’s nose. Such is the nature of the underground. Beneath the dynamic activities of subsistence and resistance, enslaved people built economic storage cases and self-constructed social spaces in the form of subfloor pits, breaking through the confines of their imposed living conditions to create a place of their own design.

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Definitions

Enslaved people: Following recent shifts in academic language, terms such as “enslaved person” (instead of “slave”) and “enslaver” (instead of “owner/master”) are used in this paper. This shift acknowledges the humanity of the enslaved person and recognizes that enslavement was a state forced upon a person by others. The term “slave” is kept in the case of quotations and in referring to well-known features within the system (i.e., “slave quarter").

Alongside and between: Mart A. Stewart explains the development of social and economic landscapes within the plantation, discussing the social construction of space by enslaved people in tidewater rice plantations in the Southern Lowcountry. Especially important to this idea is the notion that enslaved people and enslavers, while technically occupying the same landscapes, perceived and exploited these landscapes in completely different ways. (Stewart, "Rice, Water, and Power" 216)

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Thomas, Brian W. "Power and Community: The Archaeology of Slavery at the Hermitage Plantation." American Antiquity vol. 63, no. 4, 1998, pp. 531-51.

Virginia Writers' Project. The Negro in Virginia. American Negro, His History and Literature. Arno Press, 1969.

Vlach, John Michael. Back of the Big House: The Architecture of Plantation Slavery. University of North Carolina Press, 1993.

Washington, Booker T. Up from Slavery. Newburyport: Open Road Media, 2016.

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Author

Hannah Swartos is a writer whose nonfiction work focuses on food, agriculture, and environmental history. Hannah will spend the summer in the field researching the socio-cultural phenomenon of transhumance in the Irish uplands before graduating from Western in the Fall with a degree in History. She is based primarily in Perthshire, Scotland. 

Inside a Binary Interface: The Construction of Gender and Identity in Mainstream Dating Apps

By Avery Garritano

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Abstract 

Historically in western-influenced societies, binary conceptualizations of gender identity and sexual orientation have been socially and politically reinforced to fulfill the dominant assumption that, for bodies to ‘make sense,’ there must be a stable sex which corresponds to and supports a stable gender presentation and compulsory heterosexual preference. Applying Judith Butler’s framework of the cis heterosexual matrix to critique ruling sex-gender-sexuality regimes, this paper contends that the interfaces and infrastructure of popular online dating applications Tinder and Bumble not only reflect dominant cisgender (cis) and heteronormative values, but also establish and perpetuate a binary-heterosexual model of gender-sexuality intelligibility. Data from larger studies and past analyses of gender construction and presentation on dating apps are synthesized to demonstrate the ways in which the interfaces’ static depictions of masculinity and femininity permit aggressive displays of male sexuality and normalize the commodification of women. Furthermore, this work explores how transgender (trans), gender non-conforming (GNC), and queer users are structurally excluded from and rendered unintelligible by the binary-dependent interfaces and infrastructures of Tinder and Bumble, a situation which lends itself to increased harassment and often forces these users to realign themselves with binary gender expressions for the sake of both functionality and safety. Suggestions for improving inclusivity in dating apps include making identities distinct in code, adding a selection box where users can choose the identities of individuals they would prefer to see within their potential matches, and providing more methods of protection from harassment.

Keywords

gender, dating apps, heterosexual matrix, sex-gender-sexuality regime, transgender, gender non-conforming, Tinder, Bumble,  compulsory heterosexuality

Introduction

Social values and norms, including those related to gender and sexuality, will inevitably be programmed into software based on developers’ cultural perceptions. “There is no technological reason for these [binary gender] constraints,” remarked authors Caitlin MacLeod and Victoria MacArthur (2019) in The Construction of Gender in Dating Apps: An Interface Analysis of Tinder and Bumble; rather, “they are the product of a hegemonic cycle of heteronormative design practices.” However, the structure and function of software not only reflect hegemonic cisgender (cis) and heteronormative values, but also operate as the cis heterosexual matrix — constructing and naturalizing a binary-heterosexual model of gender-sexuality intelligibility. Utilizing Judith Butler’s framework of the cis heterosexual matrix, this paper analyzes how the interfaces and infrastructures of two high-grossing dating applications, Tinder and Bumble, create barriers for transgender (trans), gender non-conforming (GNC), and queer users through the reification of compulsory cis heterosexual dynamics, the reinforcement of structural exclusion for those existing outside of binary sex-gender alignment, and the allowance of harassment. Contextualized by data from larger studies and previous gender analysis of dating apps, additional research was conducted through interviews with three queer Western Washington University students. The goal of this study is not to find a causal relationship, but instead to consider how the presentation of information on each interface influences users’ perceptions of their own genders and reinforces stereotypical binary expectations regarding gender presentation and expression. 

App Background

Tinder

In 2012, software developers Jonathan Badeen, Justin Mateen, Joe Munoz, Dinesh Mrjani, Chis Gylczynski, and Whitney Wolfe founded and launched the popular mobile dating app Tinder. Featuring a simplistic design for matchmaking based on name, age, gender, and location, this virtual dating interface was invented in response to “CEO Sean Rad’s own experiences of being too worried about rejection to approach groups of women in person” (Bivens & Hoque, 2018). The app’s central design has users connect with or pass on potential matches with a simple swipe right (connect) or left (pass). Users are presented with photos (up to 10), name, age, and proximity first, while the biography and additional information of potential matches can be revealed with a finger swipe up. This presentation of user information makes the user's matchmaking decisions primarily based on the outward appearance of potential matches. As reported by Aaron Hess and Carlos Flores (2018), “over 50 million people have been active on Tinder with over 1.6 billion profile views and 12 million matches made.” However, as Tinder’s userbase expands, female Tinder users, in particular, argue the app’s hook-up culture and disproportionate amount of male users nurture misogyny and crude male behavior (Titlow, 2016). In 2013, a study conducted by the Pew Research Center found that 42% of women who have frequented online dating applications “reported being ‘contacted by someone through an online dating site or app in a way that made them feel harassed or uncomfortable,’” while only 17% of male users reported similar experiences (Titlow, 2016). 

Bumble

In response to unsolicited male aggression, hypersexualized messages, and explicit photos impacting women, executive Whitney Wolfe left Tinder to craft the now mainstream mobile dating app Bumble. Intended to alleviate trends of masculine violence, the app’s trademark “women message first” feature removes men’s ability to initiate conversations. As of 2017, the app had a reported 12 million users (Bivens & Shah Hoque, 2018). Bumble’s mechanics are similar to those of Tinder, mirroring the swipe right (connect) or left (pass) function for matching. However, after a successful match, Bumble deviates by offering a 24-hour period for female users to initiate a conversation, followed by a second 24-hour window for the potential suitor to send a response. 

The Cisgender and Heterosexual Matrix

In her feminist theory of gender performativity, Gender Trouble: Feminism and the Subversion of Identity, American philosopher Judith Butler (1990) examined the binary interpretation of bodies grounded in core essentializations about gender identity and sexual orientation. Butler’s observations of the socially and politically reinforced binary conceptualization of gender, which she labels the ‘heterosexual matrix,’ are characterized by the notion that:

for bodies to cohere and make sense there must be a stable sex expressed through a stable gender (masculine expresses male, feminine expresses female) that is oppositionally and hierarchically defined through the compulsory practice of heterosexuality. (151)

This hegemonic epistemic model of gender comprehension indicates that bodies are predominantly understood through the facile notion that biological sex and physical attributes directly signify one’s alignment with binary gender presentation. Narrow public understanding of gender identity paired with the individual desire to label and categorize peers leads to the expectation that one’s gender identity will align and remain consistent with one of two strict categories: ‘masculine’ or ‘feminine.’ This binary understanding of gender identity is perpetuated by compulsory heterosexuality, wherein it is socially assumed and politically reinforced that the only ‘natural’ sexual relationship is that between a man and a woman. Individuals who do not align with cisgender and/or heterosexual identities are socially and politically ostracized and perceived as ‘unnatural’ or ‘other.’ 

Individuals who do not align with cisgender and/or heterosexual identities are socially and politically ostracized and perceived as ‘unnatural’ or ‘other.’

Systems built consciously or unconsciously aligning with these cisgender and heteronormative values will inevitably limit access to users who exist and act outside of these standards. For the purpose of this analysis, Butler’s framework will be referred to as the ‘cis heterosexual matrix,’ given that the cultural perception of an ‘innate’ gender identity congealing around an ‘innate’ biological sex is central to her analysis of the heterosexual matrix; in other words, cisgender identity and heterosexuality are interconnected and mutually reinforcing norms. Regardless of surface-level initiatives for inclusivity, this cis heterosexual norm is exceedingly evident in the case of both Tinder and Bumble’s structures, op due to “a priori epistemological conditions” of sex, sexuality, and gender (Bivens & Shah Hoque, 2018). Following the performative structure of Butler’s theory, these applications not only passively reflect the cis heterosexual matrix, but their structures and functions also actively construct cis heteronormative values.

Prior to further analysis, it is essential to acknowledge and critique the atemporal and aspatial nature of Butler’s concept of the ‘heterosexual matrix’ (Patil, 2018). While the heterosexual matrix remains deeply embedded in western perceptions of feminism, gender, and sexuality, Butler’s work forgoes critical analysis of historical imperial impacts, colonialism, and structural racism alongside the subsequent influence on sex-gender-sexuality regimes across nations. Author Vrushali Patil (2018) used a framework of webbed connectivities to re-embed the heterosexual matrix into space and time and asserts that this concept must be “understood as a relational effect, emerging from cross-border networks of imperial relations” (29). The cis heterosexual matrix, as author David Valentine (2007) further elaborated, is rooted in the racialized views of early twentieth-century European sexologists and mid-twentieth-century United States psychiatrists and medical practitioners. 

Race exists as an intersection of identity-forming systems alongside sexuality and gender that continues to institutionally other and depict certain peoples as ‘deviant’ in order to uphold the legitimacy of the state. Colonial and post-colonial states alike endorse “the symbolic capital of sexual and gender respectability in colonialism’s aftermath” as a tool to reproduce the legitimacy of the state in ways that parallel the western cis heterosexual matrix (Patil, 2018). That is not to say that the same framework is consistent across nations; instead, “the broader network of imperial relations [. . .] from which the western heterosexual matrix emerges — and within which other regimes are multiply situated — must be acknowledged” (Patil, 2018). This brief recount centers the cis heterosexual matrix into time and space to acknowledge the relational effect of this framework when addressing the social and political construction of gender within and beyond the United States, as well as interrelated perceptions of racial and sexual ‘deviance.’ 

Due to the very manner in which Tinder, Bumble, and similar dating sites reference and rely upon binary interpretation of gender, this paper primarily investigates gender identity and sexuality. Gender identity is uniquely situated at the core of dating application development; thus, it is key to understand how the affordances of dating applications both reflect and promote social and political sex-gender-sexuality regimes and uniquely ostracize gender non-conforming and queer-identifying users. However, analysis in this study remains limited by a lack of data on queer people of color, queer disabled people, or queer Indigenous people. Future studies may develop more complex analysis through a focus on different intersectional identities.

Compulsory Heterosexual Dynamics in Straight Cisgender Users

Tinder

A demographic look at Tinder’s user base reveals that, of the 50 million people who have been active on Tinder since its launch in September 2012, the number of male-identifying users outnumbers female-identifying users at least two-to-one (Hess & Flores, 2016). Along with this skewed gender balance, Tinder has developed a reputation for crude male behavior, a culture of misogyny, and notable participation in ‘hook-up culture.’ Hess and Flores (2016) maintain that hook-up culture is a practice deeply entrenched within hegemonic performances of masculinity and femininity “through which men ‘[experience] both subtle and overt pressure from other men to achieve and maintain a socially acceptable level of ‘masculine’ behavior and displays.’” 

Male exertion of masculinity, and by extension compulsory heterosexuality, through the affordances of Tinder are most clearly displayed through the scores of hypersexualized pick-up lines sent from men to women among the collection of the 845 Tinder conversation screenshots shared on the Instagram page Tinder Nightmares (Hess & Flores, 2016). “I just finished a round of golf, wanna be my 19th hole today?” is one of many intrusive conversation openers featured on Tinder Nightmares, based on the overt sexualization and commodification of the female body and the assumption that direct sexualization of women’s bodies will lead to successful heterosexual courtship (qtd. in Hess & Flores, 2016). In numerous cases, these messages from men to women are not only toxic but are framed in a way that presents (heterosexual) sex as obligatory instead of optional. This occurrence is seen in another conversation featured on Tinder Nightmares, where user A insisted, “Hey Devon – glad we matched! Any interest in grabbing some drinks and having some obligatory sex? If you’re not into drinks, I totally understand” (qtd. in Thompson, 2018). While the message framed the drinks as optional, the sexual aspect was deemed inevitable. Thompson (2018) asserted that these conversations, as well as those that are more outright and sexually aggressive, pressured men to display a socially acceptable form of masculinity, which:

constructs an insistent, sexually aggressive style of male sexuality as healthy, normal and desirable (Hollway, 1989; Jackson, 1978) and thus positions sexual strategies from persuasion to coercion — and sometimes even aggression — as legitimate means of “getting” sex from women (see Wood, Lambert, & Jewkes, 2007). Women, on the other hand, are positioned by this discourse as “naturally” resistant to the idea of casual sex and in need of persuasion, so a “no” may be safely ignored or even considered “token resistance.”

Tinder’s infrastructure and male-dominant demographic have shaped and perpetuated the ways in which men reassert their masculinity to align with social expectations and compete with other men through the app’s embrace of hook-up culture. Through such encounters on Tinder, women have been disadvantaged and disempowered. That is not to say that Tinder is the sole cause for these aggressive compulsory acts of heterosexuality, but that the creation of a competitive virtual dating platform that both normalizes aggressive displays of male sexuality and the commodification of female users reflects and reinforces values held in the cis heterosexual matrix.

Bumble

With the development of Bumble, Wolfe intended to create a ‘feminist Tinder’ with a design that restructures online courtship in a way that suppresses male violence and aggression towards women. However, the goals behind the trademark “women message first” feature seldom carry through when Bumble users connect beyond the first message. In fact, users have consistently noted that the “feminist design did not extend past the first contact and that, when it came to setting up in-person meetings, the norm that men should ask women reasserted itself” (MacLeod & McArthur, 2018). 

Bivens and Hoque (2018) note the way Bumble seeks to manage and protect users based on an overgeneralized heteronormative view of gender relations. The app’s founding construction of masculinity presupposes that “male bodies are the carriers of masculine traits and their masculine gender performance is equated with their sexual preference (i.e., women)” (Bivens & Hoque, 2018). The ‘women message first’ feature reifies the idea that men must be managed due to their supposed inability to perform non-violent masculinity. Meanwhile, female bodies are viewed as ‘at risk,’ innocent, and reluctant. Not only is heterosexuality implied, but these gendered generalizations impact what approaches to safety and control are built into the application’s infrastructure (Bivens & Hoque, 2018).

This limited depiction of gender further assumes that only cisgender women are victims of online harassment and aggressive masculinity, failing to provide protection to those outside of the cis heteronormative dating field.

This limited depiction of gender further assumes that only cisgender women are victims of online harassment and aggressive masculinity, failing to provide protection to those outside of the cis heteronormative dating field. Transgender and queer users and users of color experience similar violence, fetishization, and harassment on these dating platforms. Despite the advertised intentions to empower women, Bumble instead creates a narrow depiction of gender and gendered relations tied directly to respective male and female bodies that reestablishes gender stereotypes and norms (Bivens & Shah Hoque, 2018).

Structural Barriers for Trans, GNC, and Queer Users

To develop an understanding of the profile creation process on Tinder and Bumble, I personally downloaded and created profiles on both apps. I aimed to analyze how each application guides users to present their personal identities and select how they would prefer to be viewed by others, specifically their expressions of gender and sexuality. As a queer-aligned nonbinary college student, I have experienced some of the structural limitations that inhibit an accurate online expression of gender identity and sexuality. However, I acknowledge that as a white individual, I lack firsthand experience or personal understanding of the racial barriers posed by the affordances of dating applications, nor can I speak to the experiences of individuals who align with other gender identities and sexual orientations. I wanted to expand my knowledge on how those who identify outside of the established ‘norms’ of cisgender and heterosexuality are uniquely impacted by the constructed interface of online dating apps and how said structure is navigated or avoided completely. Thus, I interviewed three white LGBTQ+ peers about their experiences with Tinder and Bumble to further understand the structural barriers within the apps’ interfaces for trans, gender non-conforming, and queer users.

Structural Barriers on Tinder

When first creating an account, Tinder’s opening screen presents the application’s rules and expectations. The first requirement is to “be yourself; make sure your photos, age, and bio are true to who you are.” This guideline is significant and perhaps the most controversial given how Tinder polices identity. Upon initial profile creation, the gender options presented are ‘male,’ ‘female,’ and ‘more,’ with the third option redirecting the user to a new page containing a text box to input whatever identity the user chooses along with approximately 40 selectable identities. Added in 2016 in response to rampant harassment of transgender users, the ‘more’ option resembles Facebook’s 2014 push for ‘inclusivity,’ in which a ‘custom’ gender choice and 56 identity options were incorporated into the application’s profile creation page (Bivens, 2017). On a surface level, these initiatives seem like a step in dismantling binary perceptions of gender and allowing users beyond the binary to express their respective gender identities. The catch, however, reveals itself as the Facebook sign-up page contains “a mandatory, binary gender field” along with a prompt for users to select binary-aligned pronouns (Bivens, 2017). Similarly, directly under Tinder’s nonbinary options box is a mandatory question with only two options: whether the user wishes to be included in searches for men or for women. This required question nullifies the gender non-conforming option by forcing users to select a binary-aligned gender that the system and other users will use to view and comprehend them, a feature which, when asked, “Is there anything that stood out in the structure of Tinder?” nonbinary student and user B. Adams (personal communication, May 28, 2020) mentioned immediately. 

In this way, Tinder’s constructed interface and programming only allow for users to search for matches among men, women, or both — recategorizing users who initially selected a nonbinary-aligned gender as either ‘male’ or ‘female,’ based on binary-aligned pronouns and search options selected during the profile creation process. Consequently, Tinder relies upon binary-aligned gender signifiers to craft an infrastructure that presumes cisgender and heterosexual identities as the default, while rendering nonbinary identity illegible — unable to be understood within the limits of the system (MacLeod & MacArthur, 2018). The limitations of Tinder’s gender selection process do not necessarily mean that gender non-conforming users are barred from expressing their identities — gender non-conforming users can add additional information in their biography, such as pronouns or other specifications regarding their gender — but they do face additional steps in regards to justifying their manner of gender presentation or, potentially, the legitimacy of their existence on or off the platform.

Cisgender users do not face further steps establishing gender identity beyond the initial ‘male’ or ‘female’ input, yet users who identify outside of the gender binary must work around the unavoidable binary categorization within Tinder’s infrastructure. MacLeod and MacArthur (2018) contended that “interfaces that only allow for the production of heteronormative identities act as ‘regulatory regimes’”; in regulating alternative identities ‘out of existence’ through the denial of their intelligibility, “users [are forced] to align themselves with a rigid binary system.” 

Although user profiles are presented to potential matches based on what binary sex the user chose as their search presentation, the requirement for photos allows for users to demonstrate their gender identity implicitly or explicitly. This structure also exemplifies how Tinder’s interface was built within binary perceptions of gender identity, as the concept of gender expression and presentation was assumed to align with cisgender norms, catering profile creation to cisgender male and female users.

“Tinder makes me feel like I have to put my own gender aside until I find someone who is willing to accept that I am not a woman.”

– B. Adams

When regarding gender non-conforming users especially, selecting pictures is heavily influenced by the perception of potential matches. When asked if they were comfortable outwardly presenting their nonbinary identity on Tinder, Adams (personal communication, May 28, 2020) responded, “Tinder makes me feel like I have to put my own gender aside until I find someone who is willing to accept that I am not a woman. [. . .] I feel the need to present more feminine, to only post feminine photos because I get more matches that way.” This obligation to align with a binary gender while navigating Tinder is consistent with commentary from nonbinary-aligned participants who sought matches with men in a 2020 study conducted by MacKenzie Christensen, a student at the University of California, Irvine: “As Tinder directs all users, regardless of their indicated gender identity, to choose between man or woman, nonbinary femme users chose to align themselves under the category of woman.” This directly correlates with Tinder’s structural inaccessibility to gender identity outside of the binary (Christensen, 2020). Despite methods to reassert nonbinary-aligned gender identity through photos and profile biography, transgender and gender non-conforming users feel the need to obscure their identities and re-insert themselves into binary sex-gender-sexuality regimes in order to successfully navigate Tinder’s interface. In this way, Tinder enforces and promotes the cis heterosexual matrix as individuals are pressured to realign with the gender binary for the sake of success, safety, and/or functionality.

Structural Barriers on Bumble

Bumble’s profile creation process remains similar to that of Tinder. Bumble offers users the option to create a profile based on their Facebook information; yet as aforementioned, Facebook’s representation of gender is deeply entrenched in the binary and requires a user’s full legal name, forcing individuals with chosen names to negotiate with their comfort and identity (Duguay, 2015). As explained by MacLeod and McArthur (2018), this reliance on legal documentation for confirmation of identity:

removes users’ ability to make their own risk-management decisions, as information pulled from Facebook onto a dating profile may divulge more to strangers than the user would choose to if they were given full control over what to present to an audience of prospective partners. 

Furthermore, if using Facebook to create an account, Bumble pre-selects a binary gender for the user based on information inputted in the respective Facebook profile. The user is allowed to change that preselected gender once to the other binary-aligned option, and any subsequent changes can only be achieved through contacting Bumble’s customer service (MacLeod & McArthur, 2018). This process is a clear depiction of how Bumble operates as the cis heterosexual matrix, presuming and policing the idea that gender is not only binary but unchanging. 

If users decline using Facebook, they are brought to a gender selection page with the options ‘female,’ ‘male,’ and ‘more options.’ This design choice, much like Tinder, suggests that male and female are preferred and the default. There are approximately 40 selectable genders in the ‘more options’ category, but once again there is a mandatory field where users must select whether their profile will be shown to those who are looking for men or looking for women, nullifying gender selection outside of the binary and forcing gender non-conforming individuals to pick how they would like to be perceived and categorized on a binary scale. 

Despite inclusive initiatives, this binary recategorization is a choice designed to support Bumble’s restricted messaging capabilities. The ‘women message first’ feature assumes the exclusive pursuit of heterosexual relationships on the application, and by extension relies on ‘male’ and ‘female’ gender identities while failing to account for functionality outside of this limited context. For same-sex pairings, either user can message first within the 24-hour period, rendering the empowerment and protections provided to women seeking heterosexual relationships useless for any individual outside of that categorization. As one user cited by Bivens and Hoque (2018) explains, “while LGBT people can download, match, and interact on Bumble, it doesn’t appear to have been designed for us.” Since the app understands gendered relations as predetermined behavior assigned to biological sex in a heteronormative context, it cannot account for alternative performances of gender from differently sexed bodies (Bivens & Hoque, 2018). In effect, these assumptions restrict and regulate alternative behaviors; Bumble’s interface both preserves and enforces the cis heterosexual matrix through static depictions and categorizations of gender to promote heterosexual relationships. 

Harassment Faced by Trans, GNC, and Queer Users

In catering to a predominantly cis heterosexual audience, Tinder inevitably regulates ‘authenticity’ based on a binary view of gender (Duguay, 2015). In an attempt to eliminate profiles with falsified details, Tinder allows users to file complaints or reports against profiles deemed to contain inauthentic information. Over time, this feature disproportionately targeted transgender users, following high rates of unwarranted complaints filed by transphobic members who were uncomfortable with the existence of transgender users on the platform. Additionally, Tinder views names as static and prohibits any changes to inputted names following profile creation. Nonbinary Tinder user K. Bauer (personal communication, January 28, 2021) noted that they were unable to change their legal name presented on their profile; instead, Bauer had to clarify their preferred name in their biography. For numerous transgender and gender non-conforming users who undergo name changes, the inability to alter legal names not only has the potential to invalidate the user’s personal identity but also to endanger them in instances where they are forced to justify their identities to others. This design choice reflects the assumption that users’ identities are static and presumably aligned with legal documentation.

Crude behavior and harassment directed towards trans, gender non-conforming, queer users, fat users, and users of color seems to go consistently unaddressed on dating applications. When asked about his experience as a trans man using Tinder, student L. Spring (personal communication, May 28, 2020) mentioned countless profiles that promoted exclusionist mentalities based on identity within profile biographies, explicitly stating that users with certain outward presentations, weights, and skin colors were not allowed to interact with the profile. Spring recalled that biographies with standards such as “masc4masc, no fats, fems, trans, or poc” were “a common occurrence.” Spring himself presents more feminine but stated that the aforementioned profiles shaped insecurities about his femininity and made him hesitant to disclose he was trans on the platform out of fear of being fetishized. On Tinder, in particular, Spring said he felt safer using the ‘nonbinary’ option rather than trans/male due to the past fetishization he had experienced, compromising his own identity for a label that felt safer. He described his experience on Tinder as “short-lived” and “scary.” 

Although there are no significant studies on the collective impact of Tinder on transgender and gender non-conforming users, Spring is not alone in his fears of fetishization. In fact, participants in a 2019 study conducted by Lindsay Ferris and Stefanie Duguay reported frequent exploitative messaging directed towards lesbian and bisexual Tinder users from heterosexual couples or women. Interviewed lesbian and bisexual users “experienced several accounts immediately asking for ‘nudes’ after matching” and “participants from both studies encountered heterosexual couples looking for sexual encounters with bisexual women” (Ferris & Duguay, 2019). To the women interviewed, these encounters felt as if heterosexual users viewed their identities as exploitable for “experimenting” (Ferris & Duguay, 2019).

Student G. Lee (personal communication, May 28, 2020) shared a similar critique of the prominent fetishization of queer identities, stating, “being a lesbian on mainstream dating apps is just dealing with a lot of fetishization and complete disrespect for our identity.” In particular, Lee mentions how despite altering her search settings to display only ‘women interested in women,’ she would constantly encounter men on her feed. Another common occurrence was couple profiles looking for a “third,” often seeking out bisexual, pansexual, or lesbian women for a heterosexual couple to fetishize. Lee expressed great discomfort with seeing these profiles, and admitted she had to leave Tinder as she made “not even one lasting connection.” Her experiences are similar to those of other lesbian women on Bumble, who reported that the app fails to exclude straight women seeking friends from the list of potential matches shown to lesbian users (Bivens & Shah Hoque, 2018). Thus, numerous women-seeking-women found themselves meeting straight women seeking platonic connections following accidental overlap between Bumble’s ‘BFF’ feature and lesbian Bumble. This design failure is inconvenient for queer users, but it also places them at risk of being outed to potentially dangerous individuals: 

Living in a heteronormative society, queer users are naturally aware of the risks imposed by exposing their non-normative identity online (e.g., profile descriptors or images), but infrastructural failures like this one—where an allegedly secure same-sex-only space is actually vulnerable to leaks from other sets of users—is not likely to be on their radar. (Bivens & Shah Hoque, 2018)

Bumble, like Tinder, encourages the ‘othering’ of trans, gender non-conforming, and queer individuals through a cis heteronormative infrastructure that resituates users into binary and heteronormative sex-gender-sexuality regimes.

Conclusion

The distinct use of binary gender identity within the programming of dating applications like Tinder and Bumble is influenced by and promotes a binary-heterosexual model of gender-sexuality intelligibility. Tinder and Bumble therefore operate as part of the cis heterosexual matrix, in which gender identity falls into one of two unchanging categories, male or female, and that the only ‘natural’ sexual relationship exists between a man and a woman is socially assumed and structurally reinforced. Advanced by app infrastructure, the stagnant depictions of gender coupled with the competitive nature of virtual dating platforms dangerously normalize the commodification of female users and the aggressive displays of male sexuality. Furthermore, the limitations in the interface and programming of both Tinder and Bumble render these applications largely inaccessible to transgender, gender non-conforming, and queer users. Users who do not fit into the assumed cisgender heterosexual identities have repeatedly reported a pressure to obscure their identities and realign themselves with binary sex-gender-sexuality regimes both to access the same benefits of online dating interfaces and to ensure their personal safety. 

The findings in this paper are additionally subject to several limitations: the focus on sex-gender-sexuality regimes does not include a detailed investigation of critical intersections with race and disability. While dating applications uniquely rely on and reference a binary interpretation of gender and sexuality, it is undeniable that the intersections of race and disability along with gender and sexuality further otherize and exclude users who do not fit into the applications’ assumed identities. Historically, the intersections of sex-gender-sexuality and race and disability exist as identity-forming systems which have been used to institutionally other individuals as ‘deviant’ in order to validate the legitimacy of the state (Patil, 2018). These findings would benefit from further research that investigates beyond the western cisgender and heterosexual matrix and interrogates the use of identity within dating applications while acknowledging the influence of historical networks of imperial relations.

It is difficult to fix these exclusionary issues given that profit, via the number of consumers or users, continues to be the main, if not the only, motivation for implementing initiatives for superficial ‘inclusivity’ in mainstream apps. Initiatives and campaigns advertising the diversification of user experience on both Tinder and Bumble, such as the inclusion of additional gender options during profile creation, allow for companies to reap the benefits from the appearance of inclusivity without doing the work to reorganize or reprogram these platforms for meaningful inclusion, as demonstrated by users being forced to realign themselves with binary pronouns. Currently, Tinder and Bumble include identities outside of the cisgender heterosexual matrix in name only while excluding them in structure and design. Since functionality for their target audiences and revenue take priority, it is not likely that these dating apps will take the steps necessary to function in a truly inclusive manner. Rather, startup dating apps may have the opportunity to build gender inclusivity into their programs while benefitting from inclusivity’s marketability, much like how Bumble set itself apart by declaring itself the ‘feminist Tinder.’ Inclusive design is critical for transgender, gender non-conforming, and queer users to safely navigate dating apps without being forced to compromise their identities for the sake of functionality.

To effectively create a platform for users of varying identities, dating apps must reframe and reprogram the ways in which gender and sexuality are categorized in the respective application’s database.

To effectively create a platform for users of varying identities, dating apps must reframe and reprogram the ways in which gender and sexuality are categorized in the respective application’s database. Each identity must be distinct in code, and questions that force users to select binary-aligned pronouns should be removed. In particular, replacing current gender input — where ‘male’ and ‘female’ options are separated from selections outside of the binary — with a customizable textbox is one option dating apps can implement to improve inclusivity (though admittedly with its own limitations). Similarly, the inclusion of a selection box where users can choose the identities of individuals they would prefer to see within their potential matches would increase accessibility to all users without limiting functionality to those who fit the normative gender categories. Moreover, dating apps must provide more methods of protection for transgender, gender non-conforming, and queer users as well as for those in other identity groups who currently lack adequate support. Such alterations could help dismantle stereotypical binary perceptions of gender and identity in not only dating applications, but also in society at large. 

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Definitions

Gender non-conforming (GNC): Refers to individuals whose appearance, behavior, and subjective self-image diverge from societal norms of masculinity/femininity.

Queer: Historically a derogatory term now used in reclamation; refers broadly to individuals whose identities do not align with cisgender identity and/or heterosexuality.

Symbolic capital: The emphasis on "symbolic" facets of social life from which people derive honor, recognition, or prestige, as used in Pierre Bourdieu's sociological theory. Whiteness is reinforced through 'socially acceptable' gender performances, as people of color historically performed gender in ways that did not fit this colonial binary. Colonial and post-colonial states support this symbolic performance of binary gender as it is embedded in a westernized heterosexual matrix.

Hook-up culture: The engagement in casual sexual encounters without long-term commitment to a partner.

Nonbinary: An umbrella term used to describe individuals who do not align their gender identity with the male/female binary. The term does not refer to a monolithic group and is not a third gender. There is no single ‘correct’ way of identifying and presenting as nonbinary. 

B. Adams: The three students interviewed are referred to by aliases to protect their safety and security.

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References

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Christensen, M. A. (2020). “Tindersluts” and “Tinderellas”: Examining the Digital Affordances Shaping the (Hetero) Sexual Scripts of Young Womxn on Tinder. Sociological Perspectives, 0731121420950756. https://doi.org/10.1177/0731121420950756.

Duguay, S. (2015). Dressing Up Tinderella: Interrogating Authenticity Claims on the Mobile Dating App Tinder. Information, Communication & Society, 20(3). https://doi.org/10.1080/1369118x.2016.1168471.

Ferris, L., & Duguay, S. (2020). Tinder’s lesbian digital imaginary: Investigating (im)permeable boundaries of sexual identity on a popular dating app. New Media & Society, 22(3), 489–506. https://doi.org/10.1177/1461444819864903.

Hess, A., & Flores, C. (2018). Simply more than swiping left: A critical analysis of toxic masculine performances on Tinder Nightmares. new media & society, 20(3), 1085–1102. https://doi.org/10.1177/1461444816681540.

MacLeod, C. & McArthur, V. (2018). The Construction of Gender in Dating Apps: an Interface Analysis of Tinder and Bumble. Feminist Media Studies, 19(6). https://doi.org/10.1080/14680777.2018.1494618.

Patil, V. (2018). The heterosexual matrix as imperial effect. Sociological Theory, 36(1), 1–26. https://doi.org/10.1177/0735275118759382.

Shaw, A. & Sender, K. (2016). Queer Technologies: Affordances, Affect, Ambivalence. Critical Studies in Media Communication, 33(1). https://doi.org/10.4324/9781315222738-1.

Swarr, A. (2012). Sex in Transition: Remaking Gender and Race in South Africa. New York: State University of New York Press. https://doi.org/10.4324/9780203891681-22.

Thompson, L. (2018). “I can be your Tinder nightmare”: Harassment and misogyny in the online sexual marketplace. Feminism & Psychology, 28(1), 69–89. https://doi.org/10.1177/0959353517720226.

Valentine, D. (2007). Imagining Transgender: An Ethnography of a Category. Durham, NC: Duke University Press. https://doi.org/10.2307/j.ctv125jv36.6.

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Author

Avery Garritano is a nonbinary writer from Henderson, Nevada. In Spring 2021, Avery is graduating from Western Washington University with a degree in Environmental Policy and a minor in Political Science. They will be pursuing further education in law and are considering attending the University of Washington's Master of Jurisprudence program.

Against Felon Disenfranchisement: Historicizing Racist Legacies and Constitutional Issues in U.S. Law

By Maggie Thunselle

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Abstract

In several U.S. states a felony conviction can result in an individual’s permanent loss of voting rights. Felon disenfranchisement policies have historically been protected by Supreme Court precedent, despite the fact that racial disparities within the criminal justice system result in the disproportionate disenfranchisement of people of color and Black people in particular. Contextualized by the history of white supremacy in American law and society, this paper analyzes the racist legacy of felon disenfranchisement law, including its role in Black voter suppression. Conclusions support the federal abolishment of felon disenfranchisement and suggest arguments against its constitutionality as asserted in Richardson v. Ramirez.

Keywords

felon disenfranchisement, institutional racism, criminal justice system, Richardson v. Ramirez

Introduction

In March 2019, the U.S. House of Representatives passed the historic For the People Act, a sweeping reform of election policy which contained, among other voting protections and expansions, the restoration of federal voting rights for criminal offenders who have been released from incarceration (Sonmez, 2019). This section of the bill, known as the Democracy Restoration Act, addresses a longstanding debate in United States policy: whether to reform felon disenfranchisement laws that have been historically maintained under state jurisdiction (Democracy Restoration Act, 2019). Ever since Richardson v. Ramirez (1974), in which the Supreme Court construed the Fourteenth Amendment as sanctioning the states’ right to disenfranchise criminals, nearly all U.S. states have felon disenfranchisement laws which restrict, to differing degrees, a felon’s right to vote (House Passes, 2019). In 11 U.S. states, including Iowa, Kentucky, and Alabama, a felony conviction can result in permanent disenfranchisement, or require a governor’s pardon to restore voting rights (Felon voting rights, 2018). Maine and Vermont are the only two states that do not bar felons from voting at all; convicted felons are eligible to vote even throughout their incarceration (Felon voting rights, 2018). Most states fall somewhere in between these two examples: in some states, an individual’s voting rights are automatically restored upon their release from incarceration; in others, felons remain ineligible to vote until total completion of their sentence, including parole and probation, and they are required to pay any unpaid fines before re-enfranchisement (Felon voting rights, 2018).

Against some or all variations of such laws, Democrat-aligned advocates of re-enfranchisement measures, such as non-profits like the Sentencing Project, argue that felon disenfranchisement is inherently undemocratic and racially discriminatory; current laws make over 6 million people in the U.S. ineligible to vote, disproportionately disenfranchise Americans of color generally and Black Americans in particular, and act as a form of voter suppression which affects the outcomes of political elections in favor of Republican candidates (Chung, 2018). In opposition to this view, many Republican-aligned politicians, thinktanks, and organizations stand in favor of maintaining strict criminal disenfranchisement laws, claiming that they are a proper punishment for crime, apply equitably and fairly regardless of race, and should remain, as allocated by the Supreme Court precedent, a state right unimpeded by federal powers.

 In an article for the Heritage Foundation, a conservative thinktank, Hans von Spakovsky and Roger Clegg (2015) argued that restriction of voting rights amounts to the criminal offender “[paying] his debt to society” for his wrongdoing. They cited the explicit exclusion of those convicted of a crime from voting rights within Section 2 of the Fourteenth Amendment as the constitutional basis for felon disenfranchisement, as well as evidence for a lack of racial discrimination within felon disenfranchisement laws. Spakovsky and Clegg (2015) suggest that because the law does not explicitly deny voting rights on the basis of race, but instead on the basis of criminal conviction, it cannot be racially biased. They are right in arguing that these laws lack de jure racism, meaning they do not openly and unambiguously discriminate on the basis of race. However, while contemporary laws and policies no longer explicitly claim the purpose of racial discrimination, many laws continue to impact people of color more severely than they do white people—a de facto racism which creates racist results in effect, regardless of the framing of the policy.

However, while contemporary laws and policies no longer explicitly claim the purpose of racial discrimination, many laws continue to impact people of color more severely than they do white people—a de facto racism which creates racist results in effect, regardless of the framing of the policy.

The criminal justice system, carceral system, and felon disenfranchisement laws disproportionately affect all people of color; however, this paper will specifically be discussing felon disenfranchisement as it affects Black Americans and relates to historical and contemporary institutionalized anti-Blackness. Arguing against felon disenfranchisement as a form of criminal punishment and in support of more democratic reforms to electoral policy, this essay historizes the issue of felon disenfranchisement within the legacy of U.S. white supremacy, including its role in Black voter suppression, its relationship to the disproportionate rates of Black American incarceration and criminalization, and the controversy over the constitutionality of these laws as a whole.

Historical Context: Intersections of White Supremacy and the Criminal Justice System

Following the historical analysis of political theorists, white supremacy—as a sociopolitical system of “structural white domination”—must be understood as a key architecture within the United States polity and its associated criminal justice institutions since their inception (Mills, 2015). As articulated by political theorist C.W. Mills (2015), the U.S. Constitution’s exclusive enshrinement of equality, freedom, and natural rights for white men cannot be misconstrued as an accident, “anomaly,” or “inconsistency.” Instead, these principles must be understood as necessary to the construction of liberal personhood, thought, and values: white men become legal “persons” with the associated equality and freedom through the construction of white women and people of color as “sub-persons.” While de jure forms of racism, such as explicitly prejudiced beliefs like biological theories of racial inferiority or the system of chattel slavery, have been either eliminated or become less popular over time, structures of white supremacy continue to be “perpetuated” by increasingly de facto “mechanisms” and institutions (Mills, 2015). Of particular interest to the study of race and felon disenfranchisement, the United States prison and criminal justice systems reveal clear historical ties to racism, continuing to systemically target and incarcerate people of color and especially Black Americans.

In 1865, following the Civil War, chattel slavery was legally abolished with one key exception written into the text of the Thirteenth Amendment: those who were convicted of a crime could still be forced into enslavement or involuntary servitude in the form of prison labor (Browne, 2007). Prior to 1865, the United States did not have a significant prison system, but by the end of the 19th century, an “extensive prison system” had been developed, primarily in the South, as a “mechanism to re-enslave Black workers” in the “interest of maintaining the racial and economic relationship of [enslavement]” (Browne, 2007). After the Civil War, a series of laws, the Black Codes, were introduced in order to target Black people, perpetuate racist stereotypes of criminality, and effectively criminalize Black life (Pollard, 2012). These laws were arbitrary and virtually impossible to avoid, including laws that made it illegal for Black men to walk beside a railroad or speak loudly in front of white women (Pollard, 2012). Violators of these targeted and subjective laws were, often without legal defense or a fair trial, forced back into enslaved labor in the state prisons or, under the system of convict leasing, leased to white plantation owners and forced back into the working conditions of enslavement (Delaney, 2018).

During the post-Civil War Reconstruction Era, felon disenfranchisement laws saw an increase in popularity throughout the United States. “Between 1865 and 1900, 19 states adopted or amended laws restricting the voting rights of criminal offenders,” and throughout the early 20th century, more states followed in introducing disenfranchisement laws (Manza, 2006). As the Black Codes were introduced and felon disenfranchisement laws increased, the rates of the incarceration of Black people increased as well (Manza, 2006).

Even past the civil rights era and the end of segregation, countless policies, laws, and practices have contributed to the incarceration of people of color. This culminated in the Era of Mass Incarceration, as huge spikes in prison population occurred during the second half of the 20th century. One of the most prominent contributors to mass incarceration was the War on Drugs, an ongoing campaign started in 1971 by the Nixon administration, which used “thinly veiled racial rhetoric” to perpetuate the racist ideologies that contribute to the disproportionate incarceration rates of Black Americans (The History of Mass Incarceration, 2018). The War on Drugs began a trend that would only continue into the 21st century; the prison population saw nearly a 600 percent increase between 1974 and 2014 (The History of Mass Incarceration, 2018). Following President Nixon’s introduction of the campaign, the prison population nearly doubled in the eight-year long Reagan administration, increasing from 329,000 to 627,000 (How the War on Drugs, 2016). For drug offenses, the number of people incarcerated has increased “from 40,900 in 1980 to 452,964 in 2017” (The Sentencing Project).

Since 2000, Black Americans are five times more likely to be incarcerated than white people (NAACP). Although white people are “more likely than black people to sell drugs” and “[equally] as likely to consume them,” Black people are “3.6 times more likely . . . to be arrested for selling drugs and 2.5 times more for drug possession” (How the War on Drugs, 2016). As Michelle Alexander (2012) explained in her book The New Jim Crow:

White drug offenders are rarely arrested, and when they are, they are treated more favorably at every stage of the criminal justice process, including plea bargaining and sentencing. [White people] are consistently more likely to avoid prison and felony charges, even when they are repeat offenders. Black offenders, by contract, are routinely labeled felons and released into permanent racial undercaste. (p. 189)

The historical and contemporary racist ideologies embedded in the U.S. prison system and other institutions lead to a higher likelihood that a Black person will be arrested, indicted, and incarcerated than a white person (Delaney, 2018). Considering the historical and ongoing targeting of Black people by the United States criminal justice system, felon disenfranchisement is, at least by de facto means, racially discriminatory and works to continue silencing Black voices and excluding them from democratic processes.

Considering the historical and ongoing targeting of Black people by the United States criminal justice system, felon disenfranchisement is, at least by de facto means, racially discriminatory and works to continue silencing Black voices and excluding them from democratic processes.

Felon Disenfranchisement as Black Voter Suppression

Although the version of felon disenfranchisement that exists in the U.S. today is a product of American culture and politics, disenfranchisement as a concept is not a uniquely American idea. Early notions of disenfranchisement date back to the Greek and Roman civilizations. Historically, the practice has been referred to as a “civil death,” and was considered one of the harshest punishments to be doled out by a democratic society because it deprived the subject of any agency within the political system (Thedford, 2018). Disenfranchisement as a criminal punishment was adopted in the U.S. in the mid-18th century, a time when Black people were not permitted the right to vote because they were legally enslaved (Thedford, 2018). The fact that disenfranchisement laws were first adopted before Black Americans could vote is sometimes utilized to argue that these laws cannot be understood as discriminatory, but this line of thinking ignores later developments in the laws and their use. When the passage of the Thirteenth and Fifteenth Amendments in the 1860s made it legal for Black men to vote, many former Confederate states revised their criminal disenfranchisement provisions with the express objective of limiting Black people’s ability to vote (Thedford, 2018). Crimes that were common among Black communities because of low socio-economic standing or subsequent displacement after emancipation, such as vagrancy, petty larceny, and bigamy, became offenses that led to disenfranchisement (Thedford, 2018).

Interestingly, many early court cases concluded that criminal disenfranchisement provisions had been often manipulated with the specific purpose of disenfranchising Black Americans. In 1896, the Mississippi Supreme Court found that the disenfranchisement provisions established in an 1890 constitutional convention discriminated against offenses more common among Black people, even as those convicted of crimes such as murder were not disenfranchised by the same laws (Chin, 2004). Similarly, in the 1985 case Hunter v. Underwood, an Alabama court concluded that the Alabama Constitutional Convention of 1901 was part of a movement that aimed to disenfranchise those found guilty of offenses primarily seen in Black American communities (Chin, 2004).

Overall, post-Reconstruction marks the period when criminal disenfranchisement shifted to become one of many tools used by white supremacists to maintain political power through the suppression of Black voters. More commonly discussed measures of Black voter suppression from this time include literacy tests, poll taxes, and the grandfather clause. While literacy tests and poll taxes seem like they could have impacted some white Americans in addition to Black Americans, the grandfather clause stipulated that those who had enjoyed the right to vote prior to the 1860s and their descendants were exempt from the educational and tax requirements, thus protecting the rights of poor or uneducated white people while excluding Black Americans descended from enslaved people (Britannica, 2020).

While the more explicitly racist voter suppression laws like the grandfather clause are no longer legal, other forms of voter suppression that continue to disproportionately impact people of color, such as felon disenfranchisement, remain. While these policies may not have explicitly stated that their purpose is to disenfranchise Black Americans, that has historically been and today is still their effect—a fact which is not a coincidence. Voter suppression targeted at Black Americans is rooted in the competition between political parties in addition to white supremacy. Since the 1960s, the Republican party has been courting white southern, rural, and suburban voters as the core of their base while Democrats have made policy choices that appeal more to Black Americans and Americans of color in general. Today, race is a strong indicator of political party affiliation: according to the Pew Research Center’s data on the 2018 midterm elections, 90% of Black Americans vote Democratic (Tyson, 2018). Therefore, there is a distinct conflict of interest for Republican politicians: an increase in Black voters would likely result in a decrease in political power for the Republican Party (Chin, 2004).

Legal scholar Gabriel Chin (2004) put it best when he stated that in the “full contact sport of American politics, both parties will seek any advantage they can.” Political parties, including both the Democrat and Republican, have a primary goal of gaining and maintaining political power, and they will use whatever tools necessary to do so, including undemocratic forms of voter suppression like gerrymandering. Black voters significantly favor the Democratic Party; therefore, Republican Party leaders and Republican politicians are highly incentivized to limit Black voter turnout to preserve political power. In 2018, the Supreme Court struck down the primary formula within the Voting Rights Act (VRA), a key civil rights era legislation, that required states to get approval from the federal government before making changes to their voting laws (Adelman, 2018). Since the deconstruction of the VRA, Republican-dominated state legislatures, such as those of North Carolina, Florida, Georgia, Mississippi, Texas, Arkansas, and Alabama, have passed laws with new voter restrictions that most effect poor people and people of color, including requiring strict photo-IDs, invalidating provisional ballots cast at the wrong polling station, and decreasing the early-voting period (Adelman, 2018). In this way, the preservation of felon disenfranchisement becomes one of many strategies for preserving the political power of the party that has historically benefitted from the suppression of political agency within Black communities. Indeed, all forms of felon disenfranchisement should be illegal because the existence of such laws incentivizes parties to criminalize groups who vote for their political opposition.

Criminalization, Punishment, and Morality

While felon disenfranchisement policies act overtly in the interest of the Republican party, Republican politicians and interest groups often depend on specific moral arguments regarding punishment to defend their position. A common argument for supporting felon disenfranchisement claims that the loss of the voting rights is an acceptable and reasonable punishment for criminal acts. This is not a novel argument; as previously discussed, criminal disenfranchisement was utilized for a similar reason in Greek and Roman societies. As noted by Chin (2004), many people find it difficult to argue against denying franchise to, in particular, convicted murders, rapists, or those who commit treason. In a public statement, Roger Clegg, a former official within the U.S. Department of Justice Civil Rights Division, believed that “people who have committed serious crimes have shown a lack of trustworthiness and loyalty. Someone who has shown they won’t follow the laws should not have a role in making the laws themselves” (cited in Pettus, 2004). In her book Felony Disenfranchisement in America, Katherine Pettus (2004) responds to Roger Clegg’s position:

Clegg’s rhetorical position, using words such as “serious crimes,” “trustworthiness” and “loyalty” belie the actual situation, though, which is that the majority of felons are convicted for petty crimes, largely non-violent drug offenses. The assumption that there is an empirical connection between possession of marijuana and loyalty, which justifies stripping a citizen of voting rights is tenuous at best. (pp. 145–146)

Crimes for which many citizens may agree to warrant disenfranchisement, like murder, rape, or electoral fraud, constitute a “tiny minority” of the felonies for which people are disenfranchised in the U.S.; crimes like drug possession, for which there is often a link to poverty, make up the larger majority (Pettus, 2004). The criminalization of drug crimes has led to the disenfranchisement of a mass of citizens across the U.S., most of whom are Black American, and has been an overall expensive and unsuccessful solution to the drug problem in the U.S. (Chin, 2004). Although a majority of drug offenders are white, Black Americans make up the majority of those imprisoned for a drug offense (Chin, 2004). This disparity is an example of the way in which the justice system targets minority groups, specifically Black Americans.

In 2015, Clegg argued that:

[Black ex-felons had] been denied the right to vote . . . because of their own criminal acts. This is also true of the non-African American class members. Thus, it is not racial discrimination that deprives felons, black or white, of their right to vote but their own decision to commit an act for which they assume the risks of detection and punishment. (Spakovsky & Clegg)

However, this claim assumes that the committing of a criminal act is the same as being convicted for one and, furthermore, that this relationship is constituted by a simple moral judgement that is applied equally to all by the criminal justice system.

Pettus (2004) challenged the central assumption of Clegg’s argument about the connection between morality and crime: in particular, by correctly interpreting disenfranchisement to be “a direct result of conviction for crime, not of the criminal act itself” (p. 129). Pettus understood that the criminal justice system—as “a cumulative process that begins with identification of a suspect, followed by an arrest, processing, [and] conviction” (p. 129)—is a politically-charged process instead of one dependent on or constituted by a pure morality. Here “politically-charged” refers to the fact that, for a variety of reasons—like bias, criminalizing stereotypes, or over-policing—“African-Americans and other minorities are more likely to be subject to [the criminal justice system] than members of the dominant majority, even though they have committed the same crimes” (Pettus, 2004, p. 129). In other words, because white people who have committed the same crimes are less likely to enter or encounter the criminal justice system—that is, are less likely to be arrested, charged, or convicted—simply because they are white, the criminal justice system is not based in a moral judgement of the criminal act itself (Pettus, 2004). Disenfranchisement in America is not a punishment resulting from a fair and equal moral judgement about committing a crime: it is an unjust and deeply political punishment inflicted disproportionately on those who are actively criminalized and more likely to be convicted.

Disenfranchisement in America is not a punishment resulting from a fair and equal moral judgement about committing a crime: it is an unjust and deeply political punishment inflicted disproportionately on those who are actively criminalized and more likely to be convicted.

Questioning Richardson v. Ramirez: On the Constitutionality of Felon Disenfranchisement

Despite the tenuous reasoning behind support for felon disenfranchisement, decisions about felon disenfranchisement provisions have been left largely to the states. This is because the Fourteenth Amendment has been interpreted to protect the state’s right to determine voting disqualifications in the case of a felony conviction. However, multiple legal scholars have questioned the Supreme Court’s opinion, raising concerns about this alleged constitutional protection and developing arguments that might be used in future cases to overturn the precedent.

In 1974, a case was brought to the Supreme Court of California by a group of ex-felons who had completed their sentences and paroles but were still denied registration to vote at several polling stations in California (Richardson v. Ramirez, n.d.). In Richardson v. Ramirez, the plaintiffs argued that their disenfranchisement violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution (Richardson v. Ramirez, n.d.). The Equal Protection Clause refers to a segment in Section 1 of the Fourteenth Amendment that states:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (U.S. Const. amend. XIV)

While the county officials originally named as defendants in the case decided not to contest the action, the case was eventually brought to the U.S. Supreme Court. In their opinion, the justices concluded that California’s disenfranchising of convicted felons, even those who have completed their sentences and parole, does not violate the Equal Protection Clause (Richard v. Ramirez, n.d.).

The reason for this lies in Section 2 of the Fourteenth Amendment. In 1868, a few years following the Civil War, this clause was introduced to encourage southern states to enfranchise emancipated Black men by threatening the loss of congressional representation should they fail to do so (Chin, 2004). Historically, Section 2 of the Fourteenth Amendment is understood as a failed attempt at Black male enfranchisement. Section 2 reads as so:

when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion.

In Richardson v. Ramirez, the case hinged on one small exception clause within Section 2: the fact that voting rights can be abridged by states for those who had “[participated] in rebellion, or other crime” (Chin, 2004; U.S. Const. amend. XIV). Based on the phrase “or other crime,” the Supreme Court extrapolated that the states had the right to disenfranchise any criminal convicted of a felony (Richardson v. Ramirez, n.d.). Ironically, this means that Section 2 now plays a role in suppressing Black voters even though it was originally intended to enfranchise them.

Chin (2004) argued that the Supreme Court was wrong to use Section 2 of the Fourteenth Amendment in their ruling because it has been repealed by implication in the passing of the Fifteenth Amendment: “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude” (U.S. Const. amend. XV). While Chin did not rely on a purely historical argument, it is useful to understand historical context regarding the relationship between Section 2 of the Fourteenth Amendment and the Fifteenth Amendment.

When Congress penned Section 2, they assumed that the threat of reduced representation would be enough to force formerly Confederate states to comply and allow Black men to vote (Chin, 2004). However, even before the Fourteenth Amendment was passed, Congress recognized that indirect repercussions and vague wording—which scrubbed the direct mention of race to gain wider support—would not be enough to assure compliance (Chin, 2004). Furthermore, Congress never attempted to follow through on the threat of reduced representation. Instead, within the next year, Congress drafted and proposed the Fifteenth Amendment while also asserting military reconstruction throughout the South. It is largely accepted that the proposition of the Fifteenth Amendment in 1869 was a response to the failure of Section 2 to enfranchise Black men (Chin, 2004). Instead of allowing states to decide whether they wanted to continue discriminating and take the repercussions, the Fifteenth Amendment eliminated their choice by outright prohibiting racial discrimination in voting rights laws. Although states would continue to find less explicit ways to disenfranchise Black voters, the Fifteenth Amendment stated in no uncertain terms that the right to vote was not to be denied or reduced because of race (U.S. Const. amend. XV).

In his paper, Chin (2004) recounted this history but does not rely exclusively on a historical “intent” to support his conclusion to oppose Richardson v. Ramirez. He drew instead from judicial reasoning and precedent regarding conflicting provisions and the possibility of “repeal by implication” (p. 275). Generally, without the presence of an express repeal of a former law, courts assume that old and new laws function together if possible. However, precedents for “an implied repeal [are] found where provisions in two statutes are in [irreconcilable conflict] or where the latter act covers the whole subject of the earlier one and [is clearly intended as a substitute]” (p. 275). Even in the case of the Constitution, scholars have recognized that “amendments can operate as implied repeals of existing provisions . . . such as when the Nineteenth Amendment repealed . . . the denial of the franchise to women” (p. 276). Chin (2004) argued that both the criteria of conflict and coverage/substitution are met in the relationship between Section 2 of the Fourteenth Amendment and the Fifteenth Amendment; that is, “the Fifteenth Amendment simply eliminated the [discriminatory power] that Section 2 attempted to regulate” (p. 275). The Fifteenth Amendment eliminates the state’s authority to discriminate on the basis of race and, because Black Americans under the Fifteenth Amendment possess the right to vote, the penalty outlined in Section 2 of the Fourteenth Amendment is registered null and a “new and exclusive approach to remedy” replaced it (p. 275). Therefore, the two are in non-concordance, and one can assume that the Fifteenth Amendment implicitly repeals Section 2 of the Fourteenth Amendment.

The decision in the Richardson v. Ramirez case hinged largely on the exceptions in Section 2 of the Fourteenth Amendment concerning those convicted of a crime. Because the Fifteenth Amendment implies a repeal of Section 2, felon disenfranchisement needs to be reexamined under the Equal Protection Clause. Indeed, it is very unlikely that felon disenfranchisement could pass the standard of strict scrutiny. As Chin (2004) wrote:

A disenfranchisement statute for convicted felons is difficult to tailor narrowly. If it disenfranchises too few convicts, letting those with similar convictions vote, it is invalid as underinclusive. Thus, a three-judge U.S. District Court held in 1970 that New Jersey's felon disenfranchisement provision was invalid under equal protection because there was no principled basis for distinction between disenfranchising crimes and nondisenfranchising crimes. On the other hand, if a statute disenfranchises all felons, it may be invalid as overbroad. . . It is also difficult to identify the compelling state interest in disenfranchising felons. The typical justification for felon disenfranchisement is maintaining the ‘purity of the ballot box,’ . . . [yet] box impurity cannot be based simply on the undesirable viewpoint of the voter . . .[It has to argued] that felons will cast their votes corruptly. As Justice Marshall argued, surely there are less restrictive means of achieving that goal, such as enforcement of existing election laws. (pp. 311–312)

If the Supreme Court were to take up a case that challenged Richardson v. Ramirez, then they may have to consider the argument that Section 2 of the Fourteenth Amendment is repealed. Therefore, the disenfranchisement of felons would have to be tested under the strict scrutiny of the Equal Protection Clause. Moreover, further challenges would likely argue that the disproportionate disenfranchisement of people of color under felon disenfranchisement laws violates the Fifteenth Amendment. If Section 2 is no longer part of the evaluation, felon disenfranchisement will, in all likelihood, be ruled unconstitutional.

Conclusion

Arguments in favor of disenfranchisement often claim that it is a just punishment for convicted felons, ignoring the racial targeting which guarantees that all of those who encounter disenfranchisement laws will not be equally affected. Since its inception, the U.S. prison system has systemically targeted people of color, therefore laws that disenfranchise those within that prison system will always disproportionately affect people of color. Counterarguments either do not acknowledge or do not condone the modern effects of America’s white supremacist roots and the ongoing methodology of Black voter suppression. Even in asserting very constitutionality of felon disenfranchisement, one could argue that the Supreme Court stripped the Fourteenth Amendment of its Reconstruction-era context, including its affirmation of Black enfranchisement.

Reform to and even abolition of felon disenfranchisement laws is by no means the most radical of stances in any discussion about the criminal justice system in America. This is exemplified by the growing movement advocating for the total abolition of the prison system as a whole. Abolitionist groups argue that prisons only aid in perpetuating the social factors and inequities that lead to individuals committing crimes (Kushner, 2019). The American Civil Liberties Union (ACLU) voiced its support for the movement in the past noting that “incarceration does not work” (Kushner, 2019). The prison abolition movement seeks to remedy this by and shifting the focus from punishment towards rehabilitation and reinvestment in community resources. The restoration of millions of people’s ability to participate in representational democracy remains only one small but key step towards re-empowering marginalized communities in the fight for systemic change. Democracy thrives on giving a voice to all citizens. The disenfranchisement of felons creates underrepresentation for those who statistically favor more progressive policies and who have opposing interests from those in power.

The restoration of millions of people’s ability to participate in representational democracy remains only one small but key step towards re-empowering marginalized communities in the fight for systemic change.

One way or another, felon disenfranchisement laws must be abolished. As discussed in the introduction, the Democracy Restoration Act would be the minimum first step towards more democratic representation, as it would allow all citizens of voting age to vote in federal elections regardless of state laws, therefore removing the power to influence federal elections from state governments. This Act, and many others, must be passed in order to protect the political power of marginalized groups.

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Definitions

Gerrymandering: The process used by political parties in which legislative districts are drawn in such a way that as many seats as possible are available for a party to win. For example, in 2010, Democrats drew an infamously skewed map in Maryland while Republicans did similar in Pennsylvania and North Carolina.

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Author

Maggie Thunselle is a 22-year-old writer from Snohomish, Washington. She graduated from Western Washington University in the Spring of 2020 with a degree in Political Science and a minor in Anthropology. She hopes to continue studying and writing about contemporary social issues and their impact on society and culture.

“They’re Building A Wall”: Settler Colonialism and the Separation Barrier in Occupied Palestine

By Tyler Durbin

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Abstract

Despite international consensus declaring the separation barrier in Occupied Palestine to be illegal, Israel has continued this geopolitical project unchallenged. Historical context illuminates how the barrier continues Israel’s longtime settler colonial desires and objectives. Examination of the judicial decisions of the International Court of Justice and Israel’s High Court of Justice on the separation barrier, and their following political developments, finds that judicial activism in Israel was minimally successful in mitigating the worst effects of the separation barrier. The result, however, was a barrier seen by Israel as humanitarian and proportional, allowing it to withstand domestic and international criticism from its engagement in the international crime of apartheid. Analyzing the barrier through a settler colonial lens of containment, apartheid, and spacio-cide reveals that Israel’s project was motivated by a political desire to protect illegal settlements in the Occupied Territories, confiscate Palestinian land, and prevent the future creation of a viable, sovereign Palestinian state. 

Keywords

Palestine/Israel, separation barrier, international law, settler colonialism, Zionism

“Is it for this that we have established a country? Is it for this that we have gathered from every corner of the world, the survivors of regimes that persecuted us, discriminated against us and denied us every possible right simply because our origin, in order to establish a state whose army will implement a discriminatory regime over millions who are not us?”

– Michael Sfard, Israeli human rights lawyer, The Wall

Introduction

Seventeen years after the International Court of Justice declared the Israeli separation barrier in the West Bank to be illegal under international law, Israel has continued this settler colonial project relatively unchallenged (Patel). For scholars and activists, the barrier symbolizes a dialectic of “an ever-radicalizing Palestinian struggle and an ever-deepening Israeli oppression, causing ever-growing levels of human misery, mainly—but not only—among Palestinians” (Yiftachel and Yacobi 139). 

Extending throughout the West Bank of the Occupied Palestinian Territories (OPT), the planned route of the barrier, which includes sections already constructed, under construction, and awaiting construction is some 435 miles long—more than twice the length of the Green Line, the internationally recognized border between Israel and the West Bank (Backmann 4). In fact, 85 percent of the separation barrier has been constructed in the West Bank, without consultation of the Palestinian Authority (PA). This development has led to over a decade of legal challenges to the barrier’s legitimacy, as many have argued that the construction amounts to Israel’s de facto annexation of the seam zone, the area between the Green Line and the barrier in Occupied Palestine (Sfard, The Wall 327). 

Over the years, a variety of terminology has been used to reference the separation barrier, such as ‘apartheid wall’ or ‘security fence.’ Although I may utilize any of these terms, I will mainly refer to the structure as the separation barrier because “it constitutes a physical system” for the separation of Israelis and Palestinians made up of “a series of wall; barrier; electric fences; and security zones of barbed wire, ditches, motion sensors, and surveillance cameras” (Sfard, The Wall 260; Backmann 3). Utilizing a number of theoretical concepts from a framework of settler colonialism, this essay will perform three primary tasks: a historization of the separation barrier’s development; an analysis of the barrier’s legality and the implications of its judicial challenges; and an exploration of the barrier’s function, including its effects on individual Palestinians, the possibility of a future Palestinian state, and the ongoing colonial occupation of Palestine. 

Historical and Theoretical Context

It is necessary to know an abbreviated history of Palestine and Israel in order to analyze Israel’s contemporary occupation activities and geopolitical desires, including the separation barrier project. The history of Zionist colonization of Palestine is a history of settler colonialism. After the Ottoman Empire disintegrated following World War I, Palestine “became a distinct entity under British control” (El-Hasan 11). Though challenged at times by various factors, Zionist settlement in Palestine, beginning in the late nineteenth century, succeeded in the creation of the State of Israel in 1948 (“Zionist Settler Colonialism”). 

In 1947, the newly formed United Nations passed a plan to partition historic Palestine into two separate territories and states, one for Jews and one for Arabs. Despite Zionist Jews only owning some 7 percent of the land by the partition plan’s passage, the UN outlined that 55 percent of historic Palestine would be allotted for a Jewish territory (El-Hasan 11, 16). The partition plan was thus rejected by Palestinian Arabs who had lived in that territory for generations (El-Hasan 12). After the State of Israel was declared in 1948, an ensuing regional war resulted in Israel taking control of 78 percent of historic Palestine, with the rest—including the West Bank, East Jerusalem, and the Gaza Strip—under the control of neighboring Jordan and Egypt (El-Hasan 13). Scholars estimate that between 1947 and 1949, roughly 750,000 Palestinians were expelled or fled due to the war—an event that is known to Palestinians as the Nakba, or the Catastrophe (“Fact Sheet”). 

Zionism in Palestine has viewed “the control of land [as] a zero-sum contest fought against the indigenous [Palestinian] population” (Salamanca et al. 1), in which: 

the territorial limits of settler sovereignty are liminal—indeterminate, ambiguous, and pending—at least until the frontier is closed and final borders are established. Israel, though, has been unable to close the frontier and delimit final territorial borders, which has resulted in the indefinite character of the ‘occupation’ and the continued exercise of unbounded territoriality, particularly in the West Bank. (Hughes 1)

In Israel and Palestine, as in places like the Americas, settler colonialism results in both the dissolution of Indigenous societies and creation of new colonial society upon the land which it targets; “settler colonizers come to stay: invasion is a structure not an event” (Wolfe 388). In his text on settler colonialism, theorist Patrick Wolfe illustrates this “destroy to replace” condition—in which destruction is not limited to murder or genocide—through the words of Theodore Herzl, the ‘pioneer’ of Zionism, when he noted, “If I wish to substitute a new building for an old one, I must demolish before I construct” (qtd. in Wolfe 388).

The settler colonial logics that informed Zionist geopolitics before and after 1948 continue to exist in Israeli society. In the 1967 War, Israel militarily occupied the last fifth of Palestine, the West Bank, East Jerusalem, and the Gaza Strip—the area that came to be known as the Occupied Palestinian Territories (El-Hasan 17). As Lorenzo Veracini has theorized, a settler colonial project succeeds “only when it extinguishes itself—that is, when the settlers cease to be defined as such and become ‘natives,’ and their position becomes normalized” (28). However, Veracini argues that while Israel has succeeded in its settler colonial project pre- and post-1948, it has struggled since 1967 because “whereas Zionism during the 1947–49 war was able to expel the majority of the Palestinians from within the borders of what became Israel proper, in 1967 the population living in what remained of Palestine did not leave” (29). 

Without the possibility of expulsion and to avoid extending citizenship to Palestinians, the state continued military occupation and began encroaching further on Palestinian land (El-Hasan 22). Starting in the 1970s, the Israeli government allowed the formation of Jewish-only settlements in the Palestinian Occupied Territories, which are illegal under international law, making future withdrawal increasingly difficult (El-Hasan 21). However, Palestinians continued to resist and negotiate for the establishment of a sovereign state of Palestine within the Occupied Territories, even though no attempt to establish a two-state solution has succeeded. Following the 1988 mass protests and uprisings during the First Intifada, negotiations led to the Oslo Peace Accords which again failed to establish a sovereign Palestinian state (El-Hasan 19). In lieu of sovereignty, the Accords created the Palestinian Authority, a self-governing entity which received “only limited [civil] autonomy on a few parcels of occupied land [in Gaza and the West Bank] separated by Jewish-only settlements and Jewish-only roads” (El-Hasan19). The Oslo period also fractured the West Bank into three areas under different authority: “A) Palestinian control; B) Palestinian civil control and Israeli military control; and C) full Israeli control” (Schewe). In these different areas, separate laws and institutions governed Israeli settlers and Palestinians, accentuated with severe inequality. By 2017, more than 200 Israeli settlements had been established in the West Bank where more than 620,000 Israelis currently reside (“Settlements”). 

The analytics of settler colonialism remains relevant to understanding contemporary Israeli occupation activity in the West Bank, particularly in relation to the separation barrier. As David Lloyd notes: 

Precisely as the [colonizer] becomes more established, the rigor of the divisions, the state of apartheid, between the settler and the [colonized] becomes deeper, to the extent, as we know, of the construction of walls and barriers, separate areas for residence and movement, and tightly controlled Bantustans. The ‘iron wall’ that was for Ze’ev Vladimir Jabotinsky a metaphor becomes eventually [realized] in concrete form. (67)

The Second Intifada and the Separation Principle

In 2000, just months after yet another failure to negotiate a two-state solution, Israeli Prime Minister Ariel Sharon’s provocative visit to the holy site al-Haram al-Sharif/Temple Mount triggered a period of Palestinian demonstrations and Israeli military suppression which came to be known as the Second Intifada, which was much bloodier than the first. Between 2000 and 2006, just under 1000 Israelis were killed in Palestinian attacks or bombings and roughly 3,400 Palestinians were killed by Israeli military operations (Gordon 197; Backmann 25–26). In the wake of this violence, Sharon’s administration initiated the separation barrier, claiming that it was necessary “to prevent the infiltration of terrorists, forbid the entry of clandestine arms and explosives, and protect the lives of 6.7 million Israeli citizens” (Backmann 25–26). Netzah Mashiah, head of the Ministry of Defense and director of the construction, framed the barrier as “temporary,” stating that “the length of time it stays up depends on how the Palestinians work toward peace . . . it can stay here five minutes or five decades” (qtd. in Backmann 49).

Under the guise of protecting its citizens against suicide bombings and other terrorist attacks, Israel advanced a settlement plan that built a separation barrier mainly inside the West Bank. To construct the barrier, the Israeli military issued orders to seize private Palestinian land—a process that began even before the earliest government resolution approved the barrier (Sfard, The Wall 268). Although the barrier was framed as a temporary and necessary security measure, the depth of its planned route inside the West Bank shows how it was and is a settler colonial apparatus, “a political weapon to confiscate land and thus constrict Palestinian space” (Gordon 212). The barrier’s construction to the east of many illegal Israeli settlements in the West Bank makes them easier for future annexation. Israeli human rights attorney Michael Sfard maintains that Israel’s separation barrier system “may hold the title for the most cynical manipulation of pain caused by suicide terrorism” (The Wall 260). Today, about twenty years after construction began, the separation barrier operates more as a permanent reality for Palestinians rather than the temporary solution it was promised to be. 

Echoing Agamben’s analysis of the state of emergency, the separation barrier symbolizes a state of exception, wherein the state’s temporary suspension of the law becomes permanent.

Echoing Agamben’s analysis of the state of emergency, the separation barrier symbolizes a state of exception, wherein the state’s temporary suspension of the law becomes permanent. In this way, when the allegedly temporary exception “is both the method and the law, the military can portray every action as a response to emergency and Israeli civilian society can ignore every evil” (Weizman, “Hollow Land” 239–239). A manifestation of a key policy shift, the barrier was a part of Sharon’s broader disengagement plan within the Occupied Palestinian Territories (OPT). By the time Sharon’s administration came into power:

the contradictions of Israel’s regime have grown to a point where they [could] no longer be reconciled or ignored without escalating international and local costs. This [required] a major tactical change in order to maintain the Israeli ethnocratic system. [Sharon’s newest] steps [represented] a new phase, a new method, to pursue an age-old goal of Zionism: to maximize the Judaization of Palestine while maintaining Israel’s image as a ‘normal’, democratic nation-state. (Yiftachel and Yacobi 140)

This change in the way in which Israel managed its occupation of the OPT is manifested most clearly by the separation barrier system. 

Prior to the First Intifada, Israel controlled all aspects of Palestinian life under occupation. According to Israeli scholar Neve Gordon, the Oslo period signified a transition from a colonization principle to a separation principle—a change that should not be mistaken for a “withdrawal” of power but instead understood as power’s “reorganization” and “the continuation of the occupation by other means” (200). Whereas the colonization principle is guided by biopolitics, or the power to manage and maintain life, the separation principle has been characterized by an abandonment of life, or the sovereign power to let or make die (2). The Oslo period demonstrated this shift toward the separation principle when Israel shed its biopolitical responsibility to administer the lives of Palestinians by ‘subcontracting’ that role to the Palestinian Authority while retaining full control over security. In contrast to the colonization principle, the separation principle is solely interested in the resources in a colonized territory, and not the people on it. This is demonstrated by Israel’s military attacks on the PA and its’ infrastructure during the Second Intifada, rendering its own subcontractor totally dysfunctional. In the ongoing period of separation, Palestinians represent the homo sacer: one who may be killed without due process and without the killer being punished (Hanafi 167).

Figure 1. A map of East Jerusalem in 2007 shows the separation barrier in red and the Israeli West Bank settlements in purple, with Palestinian built-up area in peach. The Israeli-extended Municipal Boundary, showing the extent of the Green Line, is shown in green.

The Barrier’s Judicial Challenges and Legitimacy

Law in the Occupied Palestinian Territories remains a hierarchical quagmire of various layers and jurisdictions; different sections of the territory operate under multiple legal authorities including laws inherited from regimes prior to occupation, Israeli military law, Israeli administrative law, Palestinian Authority laws, and international laws (Sfard, The Wall 44). For decades, Israel has maintained the position that the OPT are ‘disputed’ territory, and therefore not applicable to the international laws of occupation, despite that the majority of the international community recognizes Israel’s activities as occupation. Ever since barrier planning began in 2002, legal institutions have had a significant influence on the barrier’s reception, route, and construction—both on the international stage to determine legality and within Israel’s internal court systems to resolve conflicts. 

International Cases and Opinions

The separation barrier first received international attention and deliberation in 2003. In a special UN report, the barrier was found unlawful because it operated as de facto annexation, caused grave harm to Palestinian rights, and failed to offer a legitimate reason for its deviation from the Green Line, particularly because the Israeli settlements protected by the barrier are illegal. A United Nations Security Council (UNSC) resolution followed the report demanding Israel dismantle any part of the separation barrier that deviates from the internationally recognized border, but the United States, a longtime supporter of Israel and its occupation, invoked its veto power. 

On December 8, 2003, the UN General Assembly passed a resolution requesting an advisory opinion from the International Court of Justice (ICJ) “which does not have the enforcement power of an operative order” but “could cause Israel significant diplomatic difficulties” (Sfard, The Wall 283). The ICJ ruled on the separation barrier as a whole and focused on the Israeli settlement concerns, reiterating the international community’s stance that the illegal settlements cannot be a justification for the barrier’s deviation from the Green Line (Sfard, The Wall 300). Finding that 80 percent of Israeli settlers would reside within the fenced and walled area, the ICJ argued this demonstrated a political motivation to create a fait accompli where the seam zone is under Israeli control. The advisory opinion was 64 pages long and had five conclusions: first, the separation barrier system violates international law; second, Israel should dismantle the barrier and undo legislation and regulations concerning it; third, Israel should pay reparations for the damages the wall has caused; fourth, all states should recognize Israel’s barrier construction as illegal and not aid them; and fifth, the UN General Assembly and Security Council should consider how to end the illegal situation (Backmann 198). Eleven days after the ICJ submitted its advisory opinion, the UN General Assembly adopted resolution ES-10/15 which demanded that Israel and all UN member states comply with the legal obligations outlined in the advisory opinion and requested that the secretary-general establish a register of damage caused. However, UN General Assembly resolutions are not binding, and the Security Council never voted on the content of the advisory opinion after its release. The ICJ’s advisory opinion represented the international consensus on the legality of Israel’s separation barrier system, isolating Israel in its defiance of international law. 

Israeli Cases and Opinions

Within the State of Israel, legal challenges concerning the barrier were heard by Israel’s High Court of Justice (HCJ), the administrative bench of the Israeli Supreme Court that considers direct civilian petitions against state authorities. As planning and construction took place, many petitioners took issue with legislative orders decreed by Israel’s military commanders in the OPT, such as those for the confiscation of Palestinian land in order to build the separation barrier. In making a decision, the HCJ has the power to issue injunctions, mandatory orders, and other commands that force the state and local authorities to take or cease action (Sfard, The Wall 40). In this way, the HCJ has been an instrument for regulating the occupation and alleviating the worst effects of military violence, however the Israeli state misconstrues this fact to argue that “[they apply] the rule of law fairly and indifferently in all cases, including those of occupied Palestinians” (Weizman, The Least of All 76). In order to understand how the HCJ has either protected or damaged human rights, “one must examine the Court’s role in strengthening or weakening the occupation as a legal and political entity” (Sfard, “The Price” 37).

In examining barrier construction cases, the HCJ sought to balance security concerns of the Israeli state and military on one side and the rights of Palestinians on the other. In opposition to the International Court of Justice’s examination of the barrier as a whole, the HCJ preferred a section-by-section analysis which evaded the question of the barrier’s overall legality. One early and prominent case began with a petition from Palestinians of Beit Sourik, a village just north-west of Jerusalem. The villagers petitioned because the Israeli military’s planned route would leave 43 percent of their cultivable land on the western, Israeli-side of the barrier (Backmann 134). The HCJ’s role in this case was to judge two questions: whether the military commander had the power to seize private Palestinian land to build the separation barrier and whether the barrier’s route was lawfully set. In a familiar argument, the petitioners claimed that the military was motivated not simply by security but by a political desire to envelop illegal Israeli West Bank settlements into Israel—a de facto annexation—among the other harms it brought the villagers. On the first legal question, the HCJ reiterated Israel’s position that the seizure of private Palestinian land is allowed for security purposes, as granted by 1907 Hague Regulations and the Fourth Geneva Convention, and therefore rejected charges of annexation (Sfard, The Wall 294). Regarding the second question, the HCJ sided with the petitioners’ argument; the original route was not lawfully set because it caused irreparable harm to Palestinian villagers, their rights, and livelihoods. The legal challengers offered an alternative route proposal that addressed the proportional limits of security concerns and Palestinian rights better than the military’s original route. Proportionality became a defining feature in Israeli legal challenges to the separation barrier, a methodology that was meant to “[balance] the accrued common good of one population against the lesser evil done to another population” (Weizman, The Least 73). In 2004, the HCJ struck down 75 percent of the military’s route (some 18 miles of the barrier) in light of plausible alternatives to accommodate Palestinian petitions. However, seven months later, the Israeli military proposed another route that would cut off the Beit Sourik villagers from seven square miles of their land. When the villagers petitioned again, the court maintained the military’s second route (Backmann 134). 

Israeli courts, such as the HCJ, not only listen to the petitions from Palestinians but also those of begrudged Israeli settlers. Such was the case when the Israeli settlers from the village of Alfei Menashe petitioned the HCJ because the original 2002 route would have left their Israeli-only settlement outside of the barrier. In its decision, the HCJ ordered a re-route to include Alfei Menashe in the enclave, but the new barrier split apart two Palestinian towns, Qalqilyah and Habla (Weizman, “Hollow Land” 231). The Association of Civil Rights in Israel (ACRI) offered legal aid to the Palestinians affected by this decision. Their argument borrowed those of the recent International Court of Justice advisory opinion: the barrier’s re-routing was unlawful because it caused a disproportionate violation of Palestinian rights, failed to meet a genuine security need, and amounted to de facto annexation. On the topic of Israel’s obligation to protect the rights of settlers like those in Alfei Menashe, the ACRI stated that “military need serves the occupying power or its forces, not its citizen [settlers] who choose to relocate to the [OPT]; their protection should not involve impingements on the rights of the occupied population” (Sfard, The Wall 305). In its September 2005 ruling, the HCJ rejected the totalizing view of the barrier, maintaining that a segment-by-segment analysis was necessary to consider the military’s concerns of security. Once again citing the 1907 Hague Regulations and the Fourth Geneva Convention, the court maintained the security justification for land seizures and rejected only certain parts of the barrier to appease both Palestinian petitioners and the Israeli public (Sfard, The Wall 311–312). 

Criticizing Israel’s High Court of Justice

According to British Israeli scholar Eyal Weizman, there are significant issues with the HCJ’s application of international laws of war, such as the 1907 Hague Convention, to the situation in Palestine and Israel. These laws are not translatable to Palestine and Israel because they:

[presume] separate and defined states. Symmetrical wars between state actors can be long but tend to have clear beginnings and ends. In contrast, the Israeli-Palestinian conflict, like other past and present colonial conflicts, is an ever- and always present asymmetrical, low-intensity conflict between a state and quasi-state actors. (“Hollow Land” 239) 

In effect, the HCJ’s rulings allowed military and security needs granted under the Hague Convention, despite this law’s questionable applicability, to be proportionally prioritized over the rights granted to the occupied Palestinian population under the Fourth Geneva Convention.

When completed, 85 percent of Israeli settlers will have the barrier separating them from the areas of the West Bank populated by Palestinians. It was only due to legal challenges that the seam zone was slimmed from an estimated 16 percent of the West Bank’s land to 8 percent (Sfard, The Wall 327). Overall, the judgements issued in cases such as those of Beit Sourik, Alfei Menashe, Zufin, and Bil’in were exceptions because they provided some level of relief to Palestinian petitioners. In this way, the court system’s creation of ‘lesser evil’ alternatives lead to what Eyal Weizman sarcastically calls “the best of all possible walls” (The Least 65). The end results were final barrier routes marked with the HCJ’s seal of approval, demonstrating how legal activism against the barrier has helped Israel maintain legitimacy on the separation barrier project as a whole (Sfard, The Wall 329). The metric of proportionality in the application of international law creates “elastic zones of discretion” where the lesser evil argument is used to “subvert the law’s absolute provisions and subject them to malleable cost-benefit calculations” (Weizman, The Least 91). While some individual redress were made for Palestinian villages through legal challenges, the process resulted in the further legitimization of the barrier and expansion of Israel’s occupation of the OPT, despite dissenting international legal opinion (Weizman, The Least 65).

While some individual redress were made for Palestinian villages through legal challenges, the process resulted in the further legitimization of the barrier and expansion of Israel’s occupation of the OPT, despite dissenting international legal opinion.

Containment, Apartheid, and Spacio-cide

The separation barrier has resulted in a series of material harms to Palestinians and constitutes a broader ‘containment’ strategy by the Israeli state. Through the imposition of a permit regime, Israel has constrained freedom of movement and left many sections of the West Bank inaccessible to Palestinians. Whereas Israelis can travel through the seam zone at any time, Palestinians are only allowed legal entry at checkpoints if they have received a military-issued permit—documentation that can take up to a year to obtain. As a result, the seam zone is governed by a framework of separation and national-ethnic discrimination, which amounts to de facto and settler colonial annexation of the land for Israeli use and ownership (Sfard, The Wall 269). 

Likewise, the separation barrier has ravaged the Palestinian economy and caused widespread suffering. From 2000 to 2007 the unemployment rate in the West Bank rose from 15 percent to 17 percent. In 2008, close to 800,000 residents of the West Bank required UN food assistance. Further, the Palestinian GDP declined 10 percent between 2006 to 2007, and another 10 percent between 2007 to 2008 (Backmann 139). The barrier also has increased religious discrimination: a UN document from September 2008 found that 60 percent of Palestinian Muslims attempting to enter Jerusalem to go to the al-Aqsa mosque during Ramadan were denied access (Backmann 139). 

The result of the separation barrier system is a strategy that maintains Jewish demographic majority, maximizes the separation of and disparity between Israelis and Palestinians, and furthers Israel’s settler colonial goals through de facto annexation and the possibility of de jure annexation in the future. The barrier’s massive deviation from the Green Line underscores that a major objective is to create ‘facts on the ground,’ such as structures that protect settlements, that essentially redraw the border between Israel and the West Bank. The route “aims to mitigate the consequences of Israel’s massive settlement project, whose goal has [always] been to colonize the land without incorporating the occupied inhabitants into the Israel demos” (Gordon 217). Ultimately, the separation barrier functions as a system of containment. 

Many concepts and theories have been used to describe and understand the separation barrier’s role in the ongoing colonial occupation of Palestine. The unilateral imposition of the barrier to demarcate ethnocratic lines and distinctions has drawn claims that Israel is moving closer to or has already reached apartheid (Yiftachel and Yacobi 141). Unfolding without overt declaration, ethnic stratification deepens both through outward expansion into the Occupied Palestinian Territories and the inward exertion of legal control over Palestinian citizens of Israel. This has even been described as spacio-cidal, because it “targets land for the purpose of rendering inevitable the ‘voluntary’ transfer of the Palestinian population, primarily by targeting the space in which the Palestinian people live” (Hanafi 159). Demonstrated by the issuing of land seizure orders, this settler colonial process of spacio-cide is an attempt to seize and ‘Judaize’ as much land as possible, and isolate Palestinians into the smallest space possible through containment. Moreover, the separation barrier symbolizes the way in which the law is used to legitimate this colonial violence. International law, Israeli law, and the systems of courts are not spaces outside of the conflict, but rather battlegrounds internal to it. Weizman describes this as lawfare, when the law is used as a weapon of war, as a “strategy of using, or misusing, law as a substitute for traditional military means to achieve an operational objective” (The Least 92). Drawing from Walter Benjamin’s observations on military violence as “primordial and paradigmatic of all violence,” Weizman shows the separation barrier’s violence has also embodied a lawmaking character (The Least 92). 

The containment strategy has profound effects on the longtime aspiration for a future Palestinian state. Instead of a complete strategy of separation, the barrier created an archipelago of isolated areas that would mean any future Palestinian state would be split into small sections that are landlocked and contained by an Israeli state (Weizman, “Hollow Land” 227). Prioritizing retaining areas of high Jewish presence and shedding responsibility for high Arab populated areas not only reifies ethnic divisions and separation, but it concentrates Palestine into three to five main regions almost completely closed off from one another (Gordon 216). The legal processes’ consideration of proportionality ‘forensically engineered’ the separation barrier. If it does mark the territory of a future Palestinian state, it would be the first time in history humanitarian lawyers co-designed the borders (Weizman, The Least 77). When alternative routes of the barrier were approved to alleviate some Palestinian harm, the end route was seen by Israelis as a banal feature of participatory design rather than as “a part of the same instruments of brutal violation, repression, and dispossession” (Weizman, The Least 77). Alternatively, containment can also be understood as a strategy to prevent a Palestinian state from coming to fruition in the first place; indeed, the separation barrier creates contradictions in any future two or one state solutions (Hanafi 163). Israeli Prime Minister Sharon’s senior advisor, Dov Weisglass, admitted to this motive, saying:

the meaning of the disengagement plan is [to freeze] the diplomatic process with the Palestinians . . . When you freeze the political process, you prevent the establishment of a Palestinian state and you prevent a discussion on the subject of refugees, borders and Jerusalem . . . The vast majority of [Israeli] West Bank settlers will stay in their place forever . . . This whole package called ‘the Palestinian state’ has been removed from the daily agenda for an unlimited period of time. (qtd. in Yiftachel and Yacobi 141)

Whether a future Palestinian state remains an unimaginable reality or a potential possibility, Israel has utilized the separation barrier for a geopolitical strategy of containment that maximizes the settler colonial interests of Israelis over the rights and sovereignty of Palestinians.

Whether a future Palestinian state remains an unimaginable reality or a potential possibility, Israel has utilized the separation barrier for a geopolitical strategy of containment that maximizes the settler colonial interests of Israelis over the rights and sovereignty of Palestinians.

Figure 2. The Trump Administration’s 2020 “Vision for Peace” Conceptual Map shows the proposed territory for a future, non-sovereign Palestine. 

Conclusion

Michael Sfard recalls Abraham Heschel’s words, that “In a free society, some are guilty, all are responsible” (qtd. in Sfard, The Wall 11). He connects this distinction between guilt and responsibility to the Jewish notion of tikkun olam, which means repairing or healing the world. The process of engaging in healing is only possible if all take responsibility, regardless of the culpability or guilt of oneself. What does tikkun olam mean or look like with regard to the separation barrier? At the very least, it begins with a recognition that the separation barrier is not merely a benign, temporary security feature but a geopolitically motivated infrastructure of control, whose function is to expand colonial acquisitions and contain, isolate, and restrict Palestinians. In a 2007 hearing, Sfard and the HCJ President Beinisch debated the use of certain language to describe the barrier in court; when Beinisch asked if it was necessary to use the word ‘apartheid,’ Sfard replied, “If I don’t use it, will it disappear?” (Sfard, The Wall 333).

This word has not disappeared from conversations surrounding Israel’s continuing occupation activities. In January of 2020, the Trump administration unveiled its “Peace to Prosperity” vision for a future Israel and Palestine, in which the proposed future state of Palestine was completely subsumed by Israel. This plan also proposed that the “physical barrier should remain in place and should serve as a border between the capitals of the two parties” (“Peace to Prosperity” 17). The document’s introduction cites Israeli Prime Minister Yitzhak Rabin’s 1995 speech on the Oslo II Interim Agreement which, similar to the Trump administration’s vision, argued for an Israeli-controlled Jerusalem alongside the formal incorporation of the largely Jewish areas in the West Bank and Jordan Valley (Fayyad). This plan would leave the “remainder of the West Bank [and Gaza]” under Palestinian control, in something “less than a state” (Fayyad). The Trump administration’s vision for Israel and Palestine’s new borders eerily resembles the existing routes of the separation barrier and lays the foundation for future Israeli annexation of some 30 percent of Palestinian land in the West Bank. In this way:

the Trump plan has given Israel the green light to turn the temporary occupation into permanent annexation, thereby achieving its true goal of changing the paradigm of the two-state solution. It’s intended to leave us with an apartheid state in which some people have rights and others do not. If this becomes the baseline, it will not be a recipe for peace but for permanent, perpetual conflict. (AbuZayyad)

Recently, the application of apartheid to the Israeli occupation of Palestine has only become more common, both among state officials and human rights organizations. The former Israeli ambassador to South Africa referred to the Trump administration’s plan as a “new Bantustan map” (Liel). In January 2021, the Israeli human rights organization B’Tselem called Israel’s “regime of Jewish supremacy” apartheid (“A regime of”). Three months later, Human Rights Watch also released a report finding that Israel’s activities in the Occupied Palestinian Territories “amount to the crimes against humanity of apartheid and persecution” (“A Threshold Crossed”). Israel’s discriminatory policies and practices in the OPT and its own country are numerous and pervasive, and the separation barrier project is simply one aspect of the greater apartheid system. Still, it remains a key instrument for furthering Israel’s settler colonial interests, through asserting its control over the territory between the Mediterranean Sea and the River Jordan. 

“A wall made of bricks, but bricks can be broken.

When the people of Zion have finally awoken,

And said no more walls! No more refugees!

No more keeping people up on their knees.

And in the history books, will someday recall,

Before apartheid was ended, they were building a wall.” 

– David Rovics, “They’re Building a Wall”

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Definitions

West Bank: A Palestinian region near the Mediterranean coast, bordered by Jordan, the Dead Sea, and Israel. It is part of the Occupied Palestinian Territories, which have been under Israeli occupation since 1967. 

Occupied Palestinian Territories (OTP): A term referring to the Palestinian regions, including West Bank, East Jerusalem, and Gaza, that have been occupied by Israel since 1967. Other names for the area include Occupied Palestinian Territory or Occupied Palestine. 

Palestinian Authority (PA): The non-sovereign, semi-autonomous Palestinian governing entity in the West Bank. It was established in 1994 as a part of the Oslo Accords negotiations between Israel and the Palestinian Liberation Organization, which was intended to be an interim body until a sovereign, independent Palestinian state was established.

Apartheid: After the end of the apartheid system in South Africa, an international law was passed against the crime of apartheid. The law defines apartheid as policies and practices of racial segregation and discrimination, which include inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them.

Zionist/Zionism: Zionism is a political ideological movement for the establishment, development, and protection of a Jewish nation in what is now Israel. Zionism emerged in the late 1880s during an era of heightened European antisemitism and sought the creation of a Jewish state in historic Palestine. Zionist leaders understood their making of a Jewish majority territory would necessitate the ethnic cleansing of the indigenous Palestinian population.

Intifada: Either of two popular uprisings of Palestinians in the West Bank and Gaza Strip aimed at ending Israel’s occupation of those territories and creating an independent Palestinian state. Also spelled intifadah, Arabic intifāḍah (“shaking off”). (Araj and Brym)

Bantustans: As a structure of the South African apartheid system, the Bantustans were territories established by the South African government, controlled by the white colonial population, for the permanent removal, separation, and concentration of the Black population in White South Africa.

Fait accompli: A term referring to the circumstance in which a thing has already happened or been decided before those affected hear about it, leaving them with no option but to accept it. 

Palestinian citizens of Israel: After the 1948 War, around 150,000 Palestinians remained inside of what became Israel’s internationally recognized borders. Today, there are approximately 1.6 million Palestinian citizens of Israel, comprising about 20 percent of the total Israeli population. Though Palestinian citizens of Israel can vote and participate in political life, they face a web of institutionalized discrimination and exclusion. 

Tikkun olam: A phrase which has come to connote social action and the pursuit of social justice. It has origins in classical rabbinic literature and in Lurianic kabbalah, a major strand of Jewish mysticism originating with the work of the 16th-century kabbalist Isaac Luria.

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References

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---. The Least of All Possible Evils: A Short History of Humanitarian Violence. Verso, 2011.

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Author

Tyler Durbin is a Jewish American writer and senior at the Fairhaven College of Interdisciplinary Studies at Western Washington University. His concentration major is in Law, Diversity, and Justice: Critical Jewish Studies, with minors in Holocaust & Genocide Studies and History. He has been a member of WWU's Students for Palestinian Equal Rights during his time at Western, and after graduation he intends to pursue graduate studies in human rights and international law.