Reading response: Law/Violence

I have opted to combine my law and violence responses; the readings I have done in both categories have illustrated that the law is a means of regulating violence, to varying degrees of effectiveness, and is also a violent, patriarchal, colonial instrument that regulates women and other marginalized groups. Thus, law and violence are too intertwined for me to separate into two essays. These readings demonstrate that violence constructs, and is constructed by, ideas of gender and sexuality. The law, while granting some agency to women and people who are marginalized by race and class, also constrains this agency and underpins the power relationships in patriarchy and colonialism. I wrote this paragraph in the present tense because, while the items I read deal with the past, my much more recent experiences with law and violence convince me that there is more continuity than change in many of these themes.

Yasmin Jiwani, in Discouses of Denial, presents a theoretical framework that gives an expansive definition of violence, explicitly including structural as well as interpersonal violence. Discussing violence in anti-racist, feminist terms, Jiwani examines experiences of violence, and representations of violence, as these are informed by broader power structures. She includes, for example, the health care system and gendered and racialized discourse about terrorism, whereas the other analyses of violence that I have read have been more focused on interpersonal violence, largely assault. Jiwani argues that discourses and experiences of violence form and reinforce three “ideal types” of people who embody and perform national mythologies; women, particularly women of colour, fall outside of these mythologies and ideals. Their experiences of violence are thus erased, and their marginalization is normalized through representations of their experiences of violence.[1] As Jiwani puts it, “the regimes of truth…operating within the discursive formations of racialized and gendered violence, delimit their recognition of their most extreme and physical manifestations, denying the continuation of violence that underpins the lives of women and girls who are located in the interstices of various forms of domination.”[2] Jiwani posits that public and private realms of violence are indistinguishable, with systemic and interpersonal violence interwoven, structured by discourses of power, and expressed in hierarchies.[3]

Of the books, reports, and articles I read concerning law and violence, the Amnesty International report, No More Stolen Sisters, is closest to engaging with Jiwani’s visions of structural violence. This report considers the broader underpinnings of violence in issues such as child welfare and housing, but does focus on the tip of the iceberg: missing and murdered Indigenous women. Unlike most media coverage of this issue, this report consciously re-centres the victims of violence, naming, describing, and showing photographs of the women who murdered, and leaving the notorious serial killer unnamed.[4] This report captures the interplay between individual and systemic violence, recognizing that while violence may originate with and be exacerbated by structural issues such as misogyny, racism, and poverty, it is nonetheless experienced by individuals. The construction of violence as individual rather than systemic has tremendous historical underpinnings, illustrated by the work of several historians who consider how social location influenced women’s experiences of violence and navigations of the justice system.

In Karen Dubinsky’s 1993 analysis of the records of 400 sexual assaults reported to police, readers can see the scrutiny of women and atmosphere of disbelief that pervaded women’s legal interactions after surviving violence. Dubinsky studies forces of sexual danger in masculinity and patriarchy, describing women’s sexuality as “built around the twin poles of pleasure and danger, autonomy and victimization.” [5] Thus, Dubinsky’s study is of intimacy, violence, the formation and entrenchment of gendered sexual and moral standards as they relate to nation building, and the legal hegemony of the state over “private” matters.[6] Dubinsky takes a very broad definition of sexual crime, including  “all criminal offenses which involved relations of power between women and men.”[7] I would suggest that this is too broad, and could draw in crimes that are perhaps gendered, but not necessarily sexual, and thus obscure some experiences of crime that is more overtly sexualized.

Refuting Roy Porter’s argument that rape was a recent development that responded to the destabilization of traditional gender arrangements, Dubinsky argues instead that sexual violence, and the fear of it, was always present; it is the meaning of the violence and the fear that has changed. In her consideration of discourses of danger, she notes that “safe” places were often the most dangerous for women, suggesting a need to interrogate silences as well as moral panics. Dubinsky’s work underlines the trends we see in subsequent historians’ analyses of the law and violence. She argues that sexual violence served to regulate women’s sexuality, with courts scrutinizing women’s behaviour, often in relation to race and class. Courtrooms were also a “theatre” and a venue for public education about morality and moved private crime into the public gaze. Erikson and Sangster, whose work I will discuss later, also take up these ideas. Dubinsky also presents a particularly interesting analysis of how location could be implicated in discussions of violence, as it implied class and race; the construction of Northern Ontario as rugged and replete with dangerous masculinity cast it as a challenge for moral nation-building, and constructed the rural poor, rather than their poverty, as a social problem.[8]

Constance Backhouse’s work particularly occupies the nexus of violence and law. She argues that laws about rape reflected male perspectives, diminishing women’s realities. Backhouse examines nine Canadian case studies of incidents of violence and the subsequent legal proceedings. Her case studies represent diversity in terms of complainant’s age, race, class, and so forth. These legal proceedings, she shows, place intimate relations in public view.[9] A detailed analysis of cross-examinations illustrates that it was common for defense lawyers to attack the credibility of complainants as witnesses, attempting to position them as unworthy victims. Questioning was a “gendered character assassination…rooted in misogynistic ideology.”[10] In comparison, defendants were subject to less intensive cross-examination. This character assassination occurred because the law was premised on ideas of women’s chastity. This can be seen in case of Yvonne Collins, when gang rapists were charged with “seduction,” falsely implying a degree of consent due to her “disposition.”[11] Every facet of the identity of victim and perpetrator were salient in the courtroom and surrounding media; Backhouse navigates the nuances of race, sexuality, class, disability, and language in her analysis of these records.

The interplay of masculinity and violence is an important direction of analysis, but in one case resulted in troubling final product. Whereas Backhouse focuses on the stories of women who were involved in incidents of sexual assault, Martin Wiener’s (no relation) Men of Blood focuses on men in England who committed major violent acts, using newspaper accounts and official records to show what was thought about these men, generally relying on male perspectives of crimes that often involved women as well. This is an intentionally gendered study of “masculine criminality.” My concern is that Wiener situates male aggression as a biological phenomenon, persisting despite social attempts to reign in men’s violence.[12] Specifically, he describes it as “universal yet mutable, resting on nature yet a creature of culture.”[13] I see this as problematic because it doesn’t consider how marginalization fosters violence. According to Wiener, public concern about domestic violence was an attempt by men to reconstruct themselves, making masculinity dignified, peaceable, and self-restrained.[14] Given the position of England as an imperial power, there is surprisingly little consideration of race. Wiener does, however, see class as key in how male violence was policed, describing the “war” on violence as class war, in which working-class men’s violence became constructed as primitive. Race is an undercurrent here that Wiener doesn’t really pull out, such as when he discusses how violent white men were described as “savages,” or explains how rape was often only taken seriously when complicated by class or race. [15]

Wiener points to a contrast between official law and its practical application: while the law didn’t define rape based on women’s physical resistance or previous chastity, lawyers tended to rely on resistance and chastity in their questioning, following the middle-class Victorian assumption was that women were too weak to resist, yet too chaste to consent.[16] Given this contrast, it is puzzling how little analysis Wiener offers of the limitations of his sources. For example, he says that women gained more recourse against violence without questioning how men mediated the sources from which he learned this.[17] This failure to interrogate the silences in legal records themselves creates a definite methodological chasm between Wiener and the more feminist monographs I have read on this subject. Indeed, Wiener gives little consideration of how violence and its legal representations rested on and furthered misogyny. For example, he acknowledges a “presumption of female innocence and weakness” as a factor in saving from being hanged for murder, but sees this stereotype as one that benefitted women, without considering how it also may have harmed women who were not facing the gallows.[18] I would argue that his focus on masculinity impedes a consideration of marginalization.

The preceding monographs most clearly show the impact of social class on violence perpetrated by men against women; the role of men’s social class on violence between men becomes particularly apparent in three articles by Stowe, Gorn, and Wamsley and Kossuth. These illustrate the diversity in gendered experiences and actions of violence, yet also the commonalities, focusing particularly on how notions of honour shaped responses to violence. Wamsley and Kossuth indicate that physical challenges between men were almost universal; the difference was in their setting and expression. Violence between men enabled them to feel a sense of stability, communicating their ethnicity and class in relation to masculinity.[19] Keough’s article is a valuable counterpoint to these three authors, who do not show how women engaged in public violence. Keough argues that women used courts actively and sought legal recourse as their right in cases of abuse. Unlike in other settings, she shows that violence from plebeian women on the Avalon Peninsula was not shocking or anomalous, but a normal expression of conflict.[20]

The regulative role and violence dimensions of the law are apparent in the work of Lesley Erikson, Joan Sangster, Tamara Myers, and Elise Chenier. Sangster offers a clear definition of the purpose of the law, which she describes as “a complex of institutions, codes, practices, and personnel designed to govern, control, and aid women.” It was “historically constructed, framed by colonialism, shaped by material, social practices, a fluid cultural product embodying both domination and resistance.” [21] On this basis, Sangster argues that we need to cross-examine the law itself. As Jiwani illustrated, treatment in the legal system was dependent on measuring up to ideals; Sangster shows that in cases of incest, girls and women had to be the “ideal victim” for charges to hold up; the law was a limited resource for women, subtly and implicitly legalizing unequal power relationships.[22] According to Sangster, “the gendered ideology of protection ingrained within the legal system reproduced the notion that freedom from violence was not an inherent right of all women but, rather, was limited to decent, dutiful, and loyal wives.”[23] The concern about promiscuity was an ideology for constructing moral womanhood, reproducing gender and class inequalities.[24] Citing Linda Gordon’s materialist-feminist analysis, Sangster argues that violence is part of the “structural and social relations of women’s economic, social, and psychological subordination” rather than a product of “timeless masculinity.” From a materialist-feminist perspective, Sangster believes that Foucauldian concepts of power are insufficient, as there is too little space in Foucault’s theories to consider how agency can be deployed and yet is limited through violence. [25]

Sangster’s analysis of “deviant” female sexuality knits fluidly with the work of Tamara Myers. Myers specifically situates issues of delinquency and responses to them as part of Quebec’s colonial past in a chronological and thematic treatment of the intersections between girls’ lives and juvenile justice in an era when girls’ delinquency became increasingly seen as a social problem. Myers argues that what became known as the “girl problem” was a threat to moral hygiene, and needed scientific reform. Girls’ behaviour was problematic for racial and national survival, with women’s independence and movement through space weakening of traditional structures of authority. Myers connects this to issues specific to Quebec, such as a particular concern about the family in French Canada.[26] I do not find this concern to be particularly exceptional; indeed, Sangster points to similar concerns about maintaining certain types of families in English Canada, where the incarceration of girls was a means of isolating them from society and their own lower-class families in order to maintain their morality.[27] Myers’ analysis is more convincing when she argues that child protection initially centered in the Catholic church, rather than the state, which was less interventionist than elsewhere in Canada. Reform schools, which Myers analyzes extensively, enabled the expansion of “a particular Catholic vision of the future of French Canada.”[28]

Drawing from Dubinsky, Lesley Erikson positions the court as a theatre for public opinion where one can see the constructions of femininities and masculinities. Courts served as “cultural crossroads” in dealings with Aboriginal people, white settlers, various immigrants, and the working class, showing a complex narrative of cultural interchange.[29] Erikson points to a false dichotomy in previous historical work of “mild versus wild west,” and argues that the formation of the Prairies as a white, manly space under liberal rule was not a natural or uncontested process. Rather than seeing violence in masculine terms, Erikson suggests that we must see masculinity as an uncertain construct. Despite this uncertainty, courts were framed by masculinity, as well as by discourses of whiteness and civilization, liberal patriarchy. Even within this framing, historians can see “hidden transcripts of women’s resistance.”[30]

Within the contact zone of the courts, Aboriginal defendants could use stereotypes about cultural ignorance/less civilization in their favour. Women could also deploy stereotypes to portray themselves as wounded women to be pitied, and unable to control their actions.[31] There is a clear connection here to Jiwani’s argument, also reflected by Sangster, about violence and its responses centering around ideals, as this defense of “wounded womanhood” was only possible for those who otherwise fit standards of hegemonic femininity, as culpability was also linked to race and class.[32] Not only responses but also legal definitions relied on identity: for example, alcohol consumption was illegal only for Aboriginal people.[33] Regulating sex work drew attention away from systemic issues of women’s marginalization, and continued to position the public sphere as a predominantly male space. The law and its reform thus positioned the “private” as an elite space and means of protecting the patriarchal family, hegemonic masculinity, and Anglo-Saxon race.[34]

Elise Chenier’s analysis of male sexual deviance highlights the intense relationship between law and psychiatry. Following the Second World War, the definition and clarification of sex and gender norms emphasized deviance, rather than violence, pathologizing homosexuality in a plural, contested discourse and socially constructing the category of “sex offender.” Pathologization didn’t consider the victims of sex crimes, or the systemic issues underpinning them, focusing instead on perpetrators of violence.[35] These perpetrators, when incarcerated, experienced a prison culture in which the separation of “deviant” offenders normalized men’s sexual violence against women, as these men were not isolated from the rest of the prison population. By psychiatric definitions, their actions were criminal, but not deviant or a socio-sexual problem. Instead, the prison segregated effeminate men known as “fairies,” to protect them from other inmates, placing less scrutiny on the more masculine men who sought sexual relations with these “fairies.”[36]  There was a clear disjuncture between expert and public opinion. While experts recognized rape in prisons as coercive rather than as normal masculinity, in public discourse rape within prisons was often normalized; often the public saw it as justified, depending on the reason for incarceration. As Chenier puts it, “patriarchal and heterosexist assumptions about masculinity and sexuality left modern forensic sexologists incapable of addressing the role that gender, sexual violence, and coercion played in shaping sexual relations.”[37]

The idea of respectability was also pathologized, for both men and women. Humphries, for example, argues that treatment for war-related trauma constructed men as respectable or deviant based on men’s social location, manifestations of masculinity and sexual behaviour, and their approach to violence within the war.[38] Certain behaviours of violence were thus normalized as a means of creating, preserving, or restoring social position and identity. At times, contemporaries subtly acknowledged the role of social location in their labels and judgments. For example, Myers notes that there was a general understanding that “delinquent” was a class-linked label, rather than based strictly on behaviour.[39] I would be interested to know to what degree concepts resembling intersectionality were on the radar for social reformers in these contexts. Serena Mayeri’s study of analogies to race in the 1970s women’s movement in the United States shows a creative feminist deployment of discourses of intersectionality in legal advocacy, before the term itself was coined.[40] Like social location, physical location also informed how the law and how social reformers perceived and portrayed violence. Sangster illustrates how incest was alternately a problem of lower-class urban overcrowding or rural isolation. The arguments of Myers, Chenier, Sangster are illustrative of nuances in the labels of “delinquent” and “deviant,” which were very dependent on gender, class, race, and position in the colonial order.[41]

Julia Laite’s recent study of the criminalization of prostitution in London highlights the diversity in legal reform movements, as campaigners increased the controversy surrounding prostitution by linking it to other movements. She reminds readers the criminalization was not the same as legal prohibition, but was more nuanced and combined regulation with repression. There was a blurred line between regulation and criminalization in measures such as club registration, public health regulations, taxi licensing; reform thus took a multi-agency approach.[42] Laite’s findings are consistent with those of other historians, notably Sangster, who refers to similar themes in the criminalization of prostitution in Canada and its links to other reform initiatives.[43] Laite is careful to distinguish sex work from sexual and domestic violence, which were differentiated by their economic role for women. Women’s actions were thus critical in determining the shape of commercial sex and its criminalization.[44] Individual women, as well as criminal syndicates, were important. Despite the growth in criminal organizations for sex work, Laite notes that more women worked outside of them and that this “confounded attempts at repression and shaped the sexual economy.” Nonetheless, criminalization divided women from one another, and gave root to more opportunities to people who exploited women.[45]

Turning away from violence, Bradbury’s study of women’s widowhood shows that the law was not universally repressive, but also gave women opportunities to manage their own lives. In the “liminal space” of widowhood, women gained legal autonomy that was constrained by the cultural expectations of mourning, and could manipulate customs to their advantage.[46] Bradbury’s study would be more accurately described as a book about the life course, rather than law itself. Law is the scaffold upon which her analysis rests, but was only one of several factors that influenced women’s lives as they became widows. It was pervasive but not totalizing, as widows also navigated cultural customs and social expectations that were mediated by the circumstances of their marriages and widowhoods, and by their social locations, which were closely tied to that of their late husbands.

Methodologically, Bradbury’s approach was to carefully use legal records, supplemented by other sources, to construct a “collective genealogy” that traced women’s lives through their transition into widowhood. For some women, she gave more in-depth, individual information on their lives and circumstances, showing significant diversity in experiences. This is somewhat similar to the methodology of historians studying violence, most of whom examined numerous records to establish wider trends, then zeroed in on particular cases. What is the consequence, however, of having so many of the records we have for studying violence come from the regulative apparatus of the law? Fortunately, the majority of the historians I have covered here who use such records are quite conscious of their methodological decisions. Erikson relates that these records are “fragmentary,” focused on women’s deviance, and are devoid of feelings and reasoning behind legal decisions.[47] Sangster expresses concern that court records highly mediated women’s voices, and also notes the difference between the law itself and how women experienced it. She specifically notes the overlap of protection and punishment for girls institutionalized to remove them from abusive homes.[48] Myers refers to the challenge of determining girls’ experiences when there were multiple narratives in case files, while also noting that there were some advantages to these records: in courts transcripts, historians can see how girls understood themselves. Many, Myers learned, saw their bodies as commodities, something that the court did not critique in terms of class and gender structures.[49]

There are several overarching themes in this corpus of work on violence and the law. Chenier, Humphries, and Myers all show the scientific impetus involved in defining masculinity and femininity, proper behaviour, and deviance. Concerns of honour and respectability for men and women channeled their agency in exercising and responding to violence. Ultimately, what rests with me is the need for a self-conscious methodology, particularly when studying violence. Years ago, a poem I wrote had the line, "I'm just another paper doll; a carbon copy in a line" as I was thinking about the prevalence of violence—rape, specifically—and how it ties women together in such powerful ways. But some of the women I read about are anonymous and reduced to the violence they experience so much that I don't know if they are even faceless paper dolls. They are linked circles of statistics, the slash and hole of a percent sign. Reading about the violence experienced by women in the past is triggering on a personal level, but also disturbing academically. Court testimonies of long-dead women are quoted from at length. We get a fleeting glimpse into the pain and shame of people who cannot consent to us reading their words, or worse yet, reading what was written about them. Is it an act of justice to expose this violence, or an act of injustice to re-expose victims and survivors of violence to the scrutiny of the present, after they have already been trampled down by the past? This is what has slowed down my writing of this particular paper for the past several months. I still do not have an answer.

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[1] Yasmin Jiwani, Discourses of Denial: Mediations of Race, Gender, and Violence (Vancouver: UBC Press, 2006). xiv, 203.

[2] Jiwani, 204.

[3] Jiwani, 209.

[4] Amnesty International, No More Stolen Sisters: The Need for a Comprehensive Response to Discrimination and Violence against Indigenous Women in Canada (London: Amnesty International, 2009).

[5] Karen Dubinsky, Improper Advances: Rape and Heterosexual Conflict in Ontario, 1880-1929, Chicago Series on Sexuality, History, and Society (Chicago: University of Chicago Press, 1993), 3.

[6] Dubinsky, 4.

[7] Dubinsky, 6.

[8] Dubinsky, 15, 36, 24-25, 90-91, 94, 148-9, 161.

[9] Constance Backhouse, Carnal Crimes: Sexual Assault Law in Canada, 1900-1975 (Toronto: The Osgoode Society for Canadian Legal History, 2008), 12, 13.

[10] Backhouse, 22-23.

[11] Backhouse, 45, 70-76.

[12] Martin J Wiener, Men of Blood: Violence, Manliness and Criminal Justice in Victorian England (Cambridge; New York: Cambridge University Press, 2006). xii, 1.

[13] Wiener, 10.

[14] Wiener, 6.

[15] Wiener, 28-29, 32, 82.

[16] Wiener, 92, 98, 93.

[17] Wiener, 158.

[18] Wiener, 127.

[19] Kevin B Wamsley and Robert S Kossuth, “Fighting It Out in Nineteenth-Century Upper Canada/Canada West: Masculinities and Physical Challenges in the Tavern,” Journal of Sport History 27, no. 3 (Fall 2000), 424; Elliott J. Gorn, “Gouge and Bite, Pull Hair and Scratch: The Social Significance of Fighting in the Southern Backcountry,” American Historical Review (1985): 18–43; S M Stowe, “The ‘Touchiness’ of the Gentleman Planter: The Sense of Esteem and Continuity in the Ante-Bellum South,” The Psychohistory Review 8, no. 3 (1979): 6–15.

[20] Willeen G. Keough, “‘Now You Vagabond [W]hore I Have You’: Plebeian Women, Assault Cases, and Gender Relationsips on the Southern Avalon, 1750-1860,” in Essays in the History of Canadian Law: Two Islands: Newfoundland and Prince Edward Island, ed. Christopher English (Toronto: University of Toronto Press for Osgoode Society for Canadian LEgal History, 2005), 249-250.

[21] Joan Sangster, Regulating Girls and Women: Sexuality, Family, and the Law in Ontario, 1920-1960 (Toronto: Oxford University Press, 2001), 2, 174.

[22] Sangster, 194, 27, 49.

[23] Sangster, 84.

[24] Sangster, 200.

[25] Sangster, 51.

[26] Tamara Myers, Caught: Montreal’s Modern Girls and the Law, 1869-1945 (Toronto: University of Toronto Press, 2006), 5, 78, 87-88, 176, 15.

[27] Sangster, 148-156.

[28] Myers, 35, 38, 56.

[29] Lesley Erikson, Westward Bound Sex, Violence, the Law, and the Making of a Settler Society (Vancouver: UBC Press, 2012), 11-13.

[30] Erikson, 33, 230, 35, 155.

[31] Erikson, 40, 54, 204.

[32] Erikson, 224.

[33] Erikson, 62.

[34] Erikson, 114, 199.

[35] Elise Rose Chenier, Strangers in Our Midst: Sexual Deviancy in Postwar Ontario, Studies in Gender and History (Toronto ; Buffalo: University of Toronto Press, 2008), 18, 27, 88, 113, 104.

[36] Chenier, 149, 175, 179.

[37] Chenier, 166.

[38] Mark Humphries, “War’s Long Shadow: Masculinity, Medicine, and the Gendered Politics of Trauma, 1914-1939,” The Canadian Historical Review 91, no. 3 (September 2010): 503–531.

[39] Myers, 140.

[40] Serena Mayeri, Reasoning from Race: Feminism, Law, and the Civil Rights Revolution (Cambridge, Mass: Harvard University Press, 2011).

[41] Sangster, 34, 3, 15.

[42] Julia Laite, Common Prostitutes and Ordinary Citizens: Commercial Sex in London, 1885-1960, Genders and Sexualities in History (Houndmills, Basingstoke, Hampshire ; New York, NY: Palgrave Macmillan, 2012), 10, 2, 15, 214, 216.

[43] Sangster, 92-98, 127.

[44] Laite, 20-21.

[45] Laite, 217, 212-213.

[46] Bettina Bradbury, Wife to Widow: Lives, Laws, and Politics in Nineteenth-Century Montreal (Vancouver: UBC Press, 2012).231, 249.

[47] Erikson, 7.

[48] Sangster, 4, 38.

[49] Myers, 179-180.