Rights and democracy

by Conor Foley on August 14, 2009

Oxfam has managed to get a law on domestic violence enacted in Malawi, according to Duncan Green, its Head of Research.

I like Duncan. He has written some excellent stuff on Latin America and his wife is a former colleague of mine. I agree with him that violence against women is a bad thing and I will take his word for it that it is a serious problem in Malawi. However, I cannot help wondering about his statement that this type of ‘advocacy at national level . . is becoming an increasingly important part of Oxfam’s work.’ What exactly gives Oxfam a mandate to campaign to change the laws of the countries that it is working in and what expertise does it have in the area of criminal justice reform?

Oxfam’s focus in Malawi is on sustainable livelihoods, HIV and AIDS, health, and humanitarian aid and there is no mention of the law on the country page of its website. I did find a report entitled Popularising the Africa Women’s Protocol which details some awareness-raising activities and briefly mentions the new law, but there is no analysis of what its impact has been. Has it led to more prosecutions and, if so, what has happened at the trials? Have more people been imprisoned for committing these crimes and what impact has this had in discouraging further offences? What have been the financial costs of implementing the new law and how effective has it been in tackling the problems that it is supposed to address? Malawi is a poor country and aid organisations need to think through the costs of foisting potentially expensive new legislation on it.

I have also just read an Amnesty International report about violence against women in Brazil. I used to work for Amnesty and I hold the organization in great respect. I live in Brazil and am currently working on an Access to Justice project here. My wife is a Brazilian judge and hears dozens of cases related to domestic violence every week. I am a Brazilian tax payer and we are expecting a new baby shortly, who will be born a Brazilian citizen. In other words, I feel that I have a stake in my adopted country’s future.

We have recently enacted a new law on violence against women, which the Amnesty report praises. Amongst other things, this imposes tougher prison sentences on offenders, provides for preventative pre-trial detention and enables prosecutions, without the consent of the victim, even where the violence has been of a very minor nature.

While there is broad support for the new law, these provisions have caused controversy. Conditions in Brazil’s notoriously overcrowded prisons are appalling and most of them are effectively run by crime gangs. The majority of defendants that come before my wife are poor and unemployed; many are alcoholics or drug addicts, or have mental health problems. Lack of appropriate social services means she can rarely refer them anywhere and the new law is likely to lead to a dramatic increase in the number sent to prison. There is at least a debate to be had about whether this is the best way of tackling the problem.

Yet the Amnesty report does not mention any of these issues – which seems strange for a body set up to help get people out of prison rather than put them in. Instead it talks a lot about the social context of the violence, which affects black and poor Brazilians disproportionately. It also has a chapter about the poor quality of Brazil’s public health care and education systems.

While these points are undoubtedly true, I found myself wondering what Amnesty intended to do about them. Oxfam has obvious expertise here, since it implements education and health projects in the poorest countries of the world. Amnesty has traditionally been strong on criminal justice reform. Yet, rather than stick to what they are good at, both seem to want to converge on one another’s territory – the fuzzily-defined concept of a ‘rights-based approach to development.’

I don’t have a problem with the theoretical underpinnings of this, but what does it actually means in practice? We can all agree that people living in poverty have their human rights violated on a daily basis. The difficulty is not so much identifying the violator, but coming up with an effective remedy.

Some suggest new international treaties, others that putting social and economic rights into constitutions means that they can be tested in law. But there is virtually no empirical evidence that either approach has helped to reduce poverty in developing countries. In fact it is more likely to skew a country’s social spending because it is only the rich who are able to afford to pursue cases through rights-based litigation.

To take just one example, Brazil spends 12 per cent of its Gross Domestic Product on pensions compared to about 3 per cent on health and less than 5 per cent on education. Around 40 per cent of this sum is spent on people aged 40 – 60 and roughly 40 per cent goes to only three million former public employees. The richest fifth of Brazil’s population receive 61 per cent of pension spending; a Scandinavian level of welfare for the already extremely wealthy. Meanwhile people working in the informal economy – roughly 40 per cent of the workforce – get no benefits whatsoever.

On current deomgraphic and economic trends pension spending could bankrupt Brazil in a few decades. President Lula’s attempt to reform the system in his first term of office was met with a vigorous campaign of resistance from the Brazilian judiciary – who are amongst its chief beneficiaries. Brazil entrenched a plethora of rights and privileges in its 1988 constitution, which led to a big jump in state spending on social programmes, but had virtually no impact on reducing poverty. It is no coincidence that it is both one of the most unequal and most litigious countries in the world. These constitutional provisions also overburdened the Brazilian judiciary, which has led to lengthy delays in the conduct of trials. Amnesty reports have often rightly slammed the length of time that people spend in pre-trial detention, prison conditions and fair trial concerns, yet it seems oblivious to the link between the two issues.

Governments throughout the world have to make choices between taxation and public spending, which will always involve prioritisation and trade-offs. Enacting new legislation costs money and money spent on a prison can obviously not be spent on a school or hospital. The danger of the rights-based discourse is that removes subjects of legitimate debate from the political institutions and entrusts them to the judiciary. When applied to the international development industry it dis-empowers national parliaments and weakens democratic accountability. I would be interested in hearing other people’s views on this topic.

{ 78 comments }

1

Conor Foley 08.14.09 at 1:35 pm

I should perhaps mention that the Brazilian law came as a result of a case brought in the Inter-American Court of Human Rights and the NGOs involved in pursuing the case are mainly funded by western donors (and, no, I don’t think that any of this amounts to some fiendish plot by neo-con imperialists who want to get their hands on Brazilian oil)

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TGGP 08.14.09 at 4:25 pm

Trying to get laws passed in other countries may be questionable, but at least they’re not starting rumors they know to be false about how an activity they don’t approve of gives you AIDS. Don’t know how reliable that link is, but a great combination of outrageous+hilarious. Outragelarious?

Bill Easterly and some others have taken to analogizing many NGOs to colonialism. What do you think the primary defects of colonialism are that third-world aid needs to avoid and how good a job do you they’ve done at it? Personally, I don’t share Easterly’s concern with “dignity”. I’m more with Paul Romer (pushing charter cities recently) on consent/choice being the important thing.

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parse 08.14.09 at 5:57 pm

What exactly gives Oxfam a mandate to campaign to change the laws of the countries that it is working in and what expertise does it have in the area of criminal justice reform?

I’m not exactly sure how the word “mandate” is being used in that sentence, but the “what we do” page on Oxfam’s website includes a link to an Advocacy page that is tagged “We press decision-makers to change policies and practices that reinforce poverty and injustice.” I don’t know much about Oxfam, but I hope an organization that includes such a goal in its mission has some expertise in the area of criminal justic reform.

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Conor Foley 08.14.09 at 6:14 pm

Parse: but my point is that it hasn’t.

I don’t know anything about the Malawi law other than what I read on Duncan’s blog. But is seems fairly clear that the decision to campaign for this law did not arise out of a long programatic engagement in Malawi on the issue of women’s rights and violence against women, nor a strategic assessment or evaluation of how the enactment of this law would impact on ‘poverty and injustice’. A badly-drafted, or ill-thought out law on this issue could quite conceivably make both problems worse, by sticking a lot of people into prison in Malawi who should not be there.

Similarly, when my former boss, Kate Allen, holds up India and South Africa as positive examples of ‘putting economic and social rights into constitutions’ I am fairly sure that she does not know what she is talking about. This is not intended as an insult. Kate is a smart and thoughtful person, I just mean that she is promoting a proposal which is not based in empircal research by her own organisation.

Amnesty does not employ many economists and Oxfam does not employ many criminal justice lawyers, yet they are both now taking a view on issues which go far beyond their core competences. I am not saying that they are deliberately spreading false rumours about how you can die of AIDS, but they are pushing proposals which match the broad beliefs, opinions and prejudices of their western liberal supporters, but could actually make things much worse for the people that they are trying to help.

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Phil 08.14.09 at 6:35 pm

she is promoting a proposal which is not based in empircal research by her own organisation

But India and South Africa are positive examples of ‘putting economic and social rights into constitutions’ – they didn’t have those rights in their constitutions, and now they do. Job done.

All sarcasm aside, this is a really interesting (and troubling) line of enquiry – what are the actual effects of measures taken by national governments in the name of protecting, dignifying, empowering etc? Maybe there isn’t any substitute for building from the street level up.

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Conor Foley 08.14.09 at 6:52 pm

Phil: which is actually what Oxfam have done in Brazil. They have had a program here since the 1950s and have a long record of supporting indigenous people, landless workers, etc. Today they are doing a lot of work on environmental protection, trade reform, etc. They produce really good material on issues like biofuels and ethanol (which I have just been reading for another reason). They have built from the bottom up and do understand these issues (even if I may disagree with them occasionally).

My concern is not that Oxfam wants to work on women’s rights and criminal justice reform in Malawi. My concern is that they are claiming getting a law passed as a success, without seeming to having given much thought to the issue at all.

Similarly, I get that there is a debate about the justiceability of social and economic rights and whether or not to stick them into constitutions, I just don’t think that Amnesty is a well-informed participant in it. Yet they are currently running a major world-wide campaign which – in as much as I can understand its objectives at all – seems to be enable people to sue poor countries for being poor.

I think the problem is that both organisations have grown very rapidly on the back of western public concern about the issue of humanitarian crises (the theme of the week here) which has given them the muscle to intervene on issues which go well beyond humanitarian concerns (ie the impartial delivery of relief supplies or the documentation of violations of international human rights and humanitarian law from a strictly neutral perspective).

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Kathleen Lowrey 08.14.09 at 7:23 pm

I’m quite sympathetic to the views you’ve presented here on humanitarian intervention and NGOs, but unfortunately this post makes a lefty male move that needs to be called out. Maybe the domestic violence laws passed in Malawi and Brazil are going to overburden their prison systems in ways they are not prepared to deal with. That logically follows, cause A – consequence B, concerned discussion around the connection, fair enough.

But the rest of it suggest that somehow there is a causal link between “too much attention to women’s issues” and “but what about poverty and inequality and pensions and why are we paying attention to women’s “rights” when there is so much poverty in the world? Hey rich Western feminists have you stopped beating old people with no pensions?”

effing eff to the tenth power. It’s not like every scrap of social and political energy spent on women’s issues is illegitimately stolen from the sum total of positive social and political energy that could be expended to improve the world generally. It doesn’t work that way. It’s not like we could make a deal that as long as women could just put up with battering a couple more years we could finally crack this whole poverty thing once and for all — if only we could all stop being so *distracted* and focus on what is really important.

This rhetorical move — it just — gaaaaah. Since the commentariat at CT is 85% male, have at it, whatevs, but I can’t just let this pass.

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Kathleen Lowrey 08.14.09 at 7:24 pm

Conor Foley — what exactly is a “strictly neutral” perspective? Sort of sounds like code for “not feminist”.

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Kathleen Lowrey 08.14.09 at 7:30 pm

“Enacting new legislation costs money and money spent on a prison can obviously not be spent on a school or hospital.”

The zero sum approach to women’s issues. Every dime spent on them, every moment spent thinking about them, is stolen from hungry orphans. Apply at will to race, sexuality, etc. Conor Foley — if you have a plan that will solve world poverty in 10 years, at the price of shutting up about “women’s rights”, hey, sign me up. Somehow, though, I don’t think you do.

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Conor Foley 08.14.09 at 7:49 pm

Good points Kathleen – and very much an issue that caused problems to people working in Afghanistan. There was a huge debate about this around about 1998 when Oxfam pulled out, rather than comply with the Taliban’s anti-women edict’s, and other people stayed. Most of the people I have spoken to from Oxfam who were involved in that decision think it was probably mistaken in retrospect, I would be interested to hear what you would have done?

It was an issue that confronted me a lot when I was working there as well, because I was managing a legal aid program. I don’t think there is a single simple answer (on Afghanistan). We took some cases for women getting divorced through Shuras, and also won some custody, maintance and inheritance cases. I was peripherally involved in the setting up of a woman’s refuge centre in Kabul and we also did a few ‘rescues’ of women and girls who had been trapped in forced marriages.

On ‘strictly neutral’ – yes, it does mean keeping your personal feelings to yourself and trying to act in a way that ensures no side in a conflict are supported by your activities (rather difficult when one of the objectives of one side includes stopping women voting or going to school). Lots of dilemas.

On your views about putting more men in pre-trial detention to stop violence against women in Brazil I just think that you are wrong. There are many Brazilian feminists who would agree with you (which is why the law got passed) but many would disagree with you as well. Why do you think that putting men in prison for short periods of time, for minor offences, is likely to make them less violent towards women when they get out?

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Conor Foley 08.14.09 at 7:58 pm

OK – your last point is not so good (I had not read it while I was posting). You are not pro-women you are pro-prison. I don’t have to prove that I can end world poverty to make the case against cramming yet more people into the Brazilian penal system. You have to prove that this appalling thing to do to people is a good use of public money, which could be spent on a whole range of other things which would actually make Brazilian women’s lives safer and better.

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Thomas Jørgensen 08.14.09 at 8:43 pm

Police and prisons are a blunt instrument for dealing with /any/ social ill, up to and including murder, but for some reason I dont ever see anyone arguing that locking up murderers, robbers, and thugs in general isnt a sensible policy in principle, and the thing is that violent crime is still violent crime when its directed at your family.

Further, trying to put a stop to mysogony isnt a distraction from dealing with the other social ills of developing countries, it is the bloody essential foundation of progress on *any* of them- No country can prosper when half its populance are second rank citizens.

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Kathleen Lowrey 08.14.09 at 9:08 pm

“you are not pro-women you are pro-prison”.

also “pro-kicking-defenseless-puppies”. All feminists are, obvy.

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TGGP 08.14.09 at 9:17 pm

Glenn Loury recently broached the issue of just how much imprisonment we are willing to accept in order to cut crime (I believe the law & economics term is “efficient crime”). I applaud him for pointing out that there is a tradeoff, but I was disappointed that in his Cato Unbound he declined to get into nitty-gritty policy details. His “cry from the heart” is a first step, but without the second it doesn’t amount to much.

No country can prosper when half its populance are second rank citizens.
Wasn’t Switzerland rather late in giving women the right to vote? Come to think of it, the U.S prospered before giving its own women the right to vote and Dubai had been prospering with a large class of second-class guest-workers. I think the ability to enter the workforce, have a career and so on would be more directly related to prosperity than other markers of second status. Of course, things like deficits in education, access to family planning and so on could contribute to that. There are things to be concerned with other than prosperity though.

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Conor Foley 08.14.09 at 9:28 pm

Did I miss the commenter here who is arguing against women’s right to equality and dissing the sisters, or does someone think that she personally owns the concept of feminism?

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Kathleen Lowrey 08.14.09 at 9:29 pm

About Afghanistan and ceasing aid versus not ceasing aid: something that I think would make these dilemmas less perplexing is if the discourse *in general* recognized that it’s not a matter of “only working in places where women’s rights are not violated”, because there are no such places. Because NGOs do have to placate powerful nations, they do find it difficult to articulate truly feminist principles and so end up in these weird positions where they say, well, it’s true people here need help but on the other hand they are shooting girls on the way to school and that’s where we draw the line!

If they could make the more reasonable assertion that women’s rights are *everywhere* violated, and *everywhere* that is a bad thing, it would make it easier for them to say “we deplore the violations of women’s rights everywhere we work, including in our home nations, but that doesn’t stop us from working in all kind of places around the world — if it did, we’d stop everywhere”. This, btw, would stop the bs talk of interventions “on behalf of women” of patriarchal American neo-imperialists in its tracks.

This would also put an end to the totally wrong-headed “balance of harms” narrative that you propose: how many starving babies justify assistance in a country that legalizes marital rape? 10,000? More than 10,000? Less than 10,000? 10,000 plus a typhoon? You can’t tot these things up in separate-and-competing columns.

Let’s take the standard test case: female genital mutilation. Should feminists say it is bad? Yes. Should the campaigns against it include some discussion of the Western breast implant industry, its harms, the higher rate of suicide among women who make that “choice for themselves”? Yep, yep, a thousand times yep. Of course, that will never happen for the reasons you so rightly decry vis a vis things like the ICC — powerful donor countries don’t want to hear it.

But saying “too much feminism hurts poor people” (not enough is more like it), and portraying women’s rights efforts and anti-poverty efforts as fundamentally at odds is infuriating crapola.

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Kathleen Lowrey 08.14.09 at 9:32 pm

I think it’s the pro-prison puppy kicker who “thinks she personally owns the concept of feminism”. She’s just awful.

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Conor Foley 08.14.09 at 9:50 pm

Well let’s leave her out of the conversation then and talk about the issue sensibly.

NGOs like Oxfam and Amnesty do say that women’s rights are violated everywhere and I have never come across an NGO that sees its job as ‘placating powerful nations’. Virtually all the major humanitarian aid agencies run programs on sexual and gender-based violence (SGBV in awful NGO-parlance) and the issue is integrated into all training courses on things like the management of refugee camps. I was in Sri Lanka earlier in the year doing an evaluation of how effective this has been in the crisis response there. There is an excellent NGO called Medica Mondiale working on women’s legal rights in Afghanistan. We used to refer case to them (because we did not do criminal work) and vice versa. Here is their website http://www.medicamondiale.org/index.php?id=7&L=1

The issue is not whether to address women’s rights or the protection of vulnerable groups (women and children are particularly vulnerable during refugee crises) but how. Donors are actually chucking money at this issue and some of it is not being well-spent. That is not at all the same thing as saying that ‘feminism hurts poor people’ and it would take a very strange reading of the original article to derive that meaning.

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Conor Foley 08.14.09 at 10:14 pm

Oh – and the UK only got around to criminalizing rape within marriage in 1994. Seriously, we did campaign on the issue

http://openlibrary.org/b/OL21417893M/Women%27s-rights%2C-human-rights

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Martin Bento 08.14.09 at 10:20 pm

People who advocate human rights and argue the use of the penal system to achieve should recognize right off that there is a tension between these things. Putting someone in prison for any reason abrogates their rights, and therefore any rights-based system of justification has to weigh the rights it is violating against those it is protecting; it doesn’t get to make the entire argument in terms of the rights it is protecting. Criminals are human and therefore have human rights, including spouse abusers and whatnot.

What bothers me about this is that the prosecution can take place over the objections of the victim. That does indeed smack of elite NGO’s deciding for the people in the favelas what is best for them, their own opinion being irrelevant.

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Conor Foley 08.14.09 at 11:00 pm

Martin: that is exactly the problem. The other one being the issue of taking men accused of either threats or violence into preventative custody immediately – where they remain until a judge gets around to holding a preliminary hearing.

The argument in favour of both these measures is not entirely without merit. In some cases women need protection from violent men and some women may withdraw charges out of fear. But in the cases that my wife hears most frequently (as in several times a day) what happens is that a couple have an argument or fight – sometimes when one or the other is drunk. The police turn up and often take the man into custody (although paradoxically they may be doing this less now because of the law) where he sits until his case is heard. In the cold light of day the woman often does not want her husband/boyfriend to be put in prison, but the law seeks to remove her right to withdraw charges. My wife thinks that is a problem and I tend to agree with her.

Incidentally, I put a link into the original piece about my wife’s work. She grew up in the ABC region of Sao Paulo – where Lula built his base – joined PT as a teenager and worked in a legal aid clinic in a favela before becoming a legal advisor for the party’s parliamentary representatives. She considers herself a feminist and has never kicked a puppy in her life.

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Phil 08.14.09 at 11:17 pm

Glenn Loury recently broached the issue of just how much imprisonment we are willing to accept in order to cut crime

If that’s the answer, I’ve got to wonder about the question – even gesturing vaguely in the direction of more incarceration, in the US, is crazy talk. That aside, prison is an incredibly blunt instrument: studies suggest that a prison term of X months stops the average persistent offender from re-offending for about X+6 months, a figure that’s pretty constant regardless of whether X is 6 or 96. If you want to bring down the crime rate through imprisonment, you either have to increase sentences massively and across the board, or you have to identify the persistent offenders and future persistent offenders and hit those specific people with disproportionately long sentences. Which unfortunately is impossible, bringing us back to option A. Meanwhile you’ve got to deal with the criminogenic effects of incarceration (deskilling and desocialisation of inmates, impoverishment of inmates’ families, disruption of social networks and community structures in high-crime areas) – all of which are quite bad enough already, and all of which would get worse if average sentence length increased.

As I say, if ‘more imprisonment’ is the answer, someone’s asking the wrong question. Speaking as a criminologist, I think affluent societies – the US in particular – should realise that they’ve got worse and more pressing problems than crime.

23

Phil 08.14.09 at 11:19 pm

What’s wrong with *that* comment? It doesn’t object to the phrase ‘social networks’, surely?

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Martin Bento 08.15.09 at 1:05 am

Conor, yes, the whole concept of “preventative detention” is deeply scary. It seems to be the justification the Obama administration is using for keeping Gitmo detainees as well. I don’t think due process to determine guilt is negotiable, and obviously there can be no guilt before the crime. If you can be imprisoned to prevent you from committing crimes, we’re already in the world of Minority Report, and evidently we are.

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Afshin 08.15.09 at 7:08 am

I have a couple of questions because I don’t know where you’ve limited the debate.

How does one compare costs (how does one price the suffering of women)? How should one see one’s own responsibility in maximizing all humans’ freedom of expression in this equation? Should that responsibility be only within the hands of the country’s legislators without being lobbied at all in all cases no matter how patriarchal they are?

What if the state becomes wealthy from a natural resource and further imposes its patriarchal doctrines on its people, a.l.a. Saudi Arabia, should one not carry a bad conscience for not imposing one’s will when one had the authority?

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Katherine 08.15.09 at 7:46 am

Amnesty does not employ many economists

But if I understand the situation correctly, they are currently recruiting, since they are winding up to get into the “economic and social rights” arena.

And I agree to a certain extent with Kathleen Lowry here – you are ranking women’s rights against poor people’s rights against as if they aren’t the same thing at least 50% of the time. I think you need to go away and think about the phrase “women’s rights are human rights” some more.

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Phil 08.15.09 at 10:24 am

That last comment is condescending and lazy; I think you need to stay here and read Conor’s post properly. Conor isn’t doing anything so schematic as “ranking women’s rights against poor people’s rights”. He’s suggesting that implementing justiciable rights – for any group – in a poor country is a complex and costly process which is highly likely to have adverse consequences, both direct and indirect. More incarceration is generally a bad thing in itself; it also means less money to spend on social services. See also my comment at 22 about the effects of incarceration, most of which bear rather heavily on women.

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bianca steele 08.15.09 at 2:00 pm

Phil makes a reasonable point, but I agree with Kathleen and Katherine. On the other hand, I’m not well-disposed towards this whole thing. Is the issue that Amnesty and Oxfam are involving themselves in local legislation (as opposed to, for example, trying to increase the influence of the UN and other international organizations), whether by supporting local political parties or with backroom access to leaders? Or is the issue that Oxfam doesn’t have expertise in this area (though AI does)? Or is the issue that they’re making wrong decisions as to the details of what legislation would be best (in which case, I’ve never figured out how discussions in terms of high-level principles answers this question)? All of these seem to me to be reasonable objections and at this point I’m concerned that all but the last appear to have been conceded. But as I said I’m not favorably predisposed, and I’ve probably bored everybody by spelling out the obvious in detail everyone has already worked out themselves.

I’d further object that the wording used (the issue of taking men accused of either threats or violence into preventative custody immediately) seems to play rhetorically into an idea that there’s a huge problem generally with women falsely accusing men of using violence against them and using the power of the state to take away their civil liberties without due process or even recourse.

(Also, I’ve been wondering whether when I (as an American) give money to Oxfam for African development, it counts as US aid to Africa, or whether it increases the difference between US and UK aid by just that small amount–more reason I’m not too especially well predisposed.)

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Conor Foley 08.15.09 at 2:01 pm

Kathrine: I presume that you are taking the phrase ‘women’s rights are human rights’ from the report that we submitted to the UN Human Rights Committee. If you have read it then I would be very interested in your critique of it. Telling me that I simply have not thought about an issue enough (presumably as much as you) is not particularly heplful or constructive. It is also, frankly, insulting to assert that I am ranking women’s rights against anything. Please read the post properly

Yes I see that Amnesty UK are hiring some people to work on economic, social and cultural. From the adverts it sounds that they would be more likely to be lawyers than economist though and this is in response to their own campaign, which seems a curious way around to do things.

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Conor Foley 08.15.09 at 2:27 pm

Bianca do keep giving money to Oxfam (and whoever else) but also ask them how they are spending it.

On the issue of violence and threats of violence, It is not about women making false claims, but that a threat is a different (and less serious) type of crime to actual physical violence. On the cases that I am aware of what happens is that a man (often drunk) threatens his partner and she (or a neighbour) call the police. When they arrive they can take the man into preventative custody where he will stay for several months until a judge holds a preliminary hearing (the backlog of cases in Brazil is huge and most courts have several thousand cases sitting there). Obviously by the time he gets to court he is often very angry and my wife has the dilemma about whether not to release people in that state.

Domestic violence is a huge problem in Brazil. One very good initiative has been the creation of all-women police stations. See here for more http://www.ucpress.edu/books/pages/10290.php

There aren’t enough of them and they are under-funded. Brazil also needs more mental health facilities and drug and alcohol addicition clinics, plus a range of social services to which people can be referred. All of this would probably be cheaper than imprisonment (numbers are sky-rocketing) but the new law does not address any of these problems – and its sentencing aspects could make the situation worse. I don’t know anything about the situation in Malawi, but I could imagine it might be similar.

What would be interesting would be for Amnesty to do a report on this issue – which is definitely within their core competency – rather than hire new staff because they want to ‘get into the “economic and social rights” arena’.

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quanticle 08.15.09 at 3:55 pm

If they could make the more reasonable assertion that women’s rights are everywhere violated, and everywhere that is a bad thing, it would make it easier for them to say “we deplore the violations of women’s rights everywhere we work, including in our home nations, but that doesn’t stop us from working in all kind of places around the world—if it did, we’d stop everywhere”.

Is it just me, or does anyone else find that sort of statement to be particularly meaningless? I mean, of course women’s rights are being violated everywhere. So are men’s rights, children’s rights and the rights of all sorts of other people. It just smacks of moral equivalency to me – saying that America, Britain, Europe, etc. are just as bad as Malawi, India, Brazil, etc. because in both categories you’ve got at least one person whose rights are being violated.

The meaningful question isn’t “Are rights being violated?” Of course rights are being violated. Violations of rights exist whenever you’ve got a non-trivial number of people in the same area. The question is, “Are there effective and just means of redress when rights are violated?” And, there you can draw a difference between countries. Countries like Afghanistan under Taliban rules did not have effective and just means of redress for violations of women’s rights. Countries like Britain (and now Malawi) do. Given that means of making a distinction, both the decisions by Oxfam make more sense.

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Joaquin Tamiroff 08.15.09 at 4:30 pm

These discussions amaze me, and not in a good way.
If the point is to build an independent self-sustaining and more civil society than the only way to do that is to change society as a whole not impose civilization from above. The whole “we have to do something” crowd is more engaged with their own self-righteousness than with the facts of human behavior and of law: of intentions and precedent.

It’s a fact of law that sometimes the guilty go free. Vigilantism by individuals of states does more harm than good. That’s DD’s discussion elsewhere on this page.

“too much feminism hurts poor people”
Sure it does, if that means western models built over 150 years are imposed on other countries with a shorter period of modernity, by which logic the women’s organizations in Hamas can’t be described as feminist because they operate within a patriarchal system. By that logic 19th century western feminists wouldn’t even deserve that title.

Authoritarian modernity is shallow at best. The Shah’s modernity was a sham. Mossadegh’s was not. What’s happening now in Iran is not, even if the protesters are wearing the hijab. The “conservative islamists” in Turkey are more modern than the secularist military, again even if the women are in hijab.
Kathleen Lowrey an angry earnest american spends too much time looking at herself in the mirror.

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TGGP 08.15.09 at 5:12 pm

To play Devil’s Advocate Phil, crime in Britain has risen 4700% since its trough. Crime in the U.S is still substantially higher than it was in the 50s. Those were crime rates people lived under and thought normal. If you had a time machine and brought someone from then to the present they’d be absolutely shocked that we tolerate as much crime as we do. A lower crime rate certainly seems possible and imprisonment contributes to it. Mark Kleiman thinks we can halve both imprisonment and crime. He’d lock more people up more frequently, but trading off certainty for duration as behavioral economics would suggest. Personally I think prison mostly works due to incapacitation rather than deterrence or rehabilitation, but Kleiman claims the Hawaii HOPE program has given such results and scaled well. I think there are other policies we could pursue that would lower the crime rate without any creepy Orwellian overtones, like ending the War on Some Drugs, which Kleiman would not go along with.

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djw 08.15.09 at 5:15 pm

Conor, thanks for another interesting and thought-provoking post.

I’m curious about one thing–when you say constitutionalizing SE rights “is more likely to skew a country’s social spending because it is only the rich who are able to afford to pursue cases through rights-based litigation.” is that a prediction based on your experience about what you’d expect to happen, or is it based on your casual observations of what has happened in countries with consitutionalized SE rights, or has there been systematic research done that confirms this? (and if it’s the latter, I’d be interested in in a cite if you’ve got it).

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Kathleen Lowrey 08.15.09 at 5:44 pm

Conor Foley — the fact that your go-to reaction when challenged by any critical female commenter is to become drippingly condescending isn’t helping your case (nor is your repeated invocation of your wife and how she TOTALLY AGREES WITH YOU so take that! You are actually earning points in a game created by feminist bloggers called troll bingo, which describes the several stereotyped rhetorical moves commenters hostile to feminism consistently make.)

It also does not help that you seem achingly unaware of how exactly your description of what you see as problematic about the new laws — that they over-react to ambiguous situations — plays exactly into the whole “he said / she said / who’s really to say” complex around rape and domestic violence prosecution that are at the heart of what this kind of legislation is meant to address.

The (exclusively male, one cannot help but note) concern expressed here with the independently vast problem of the prison-industrial complex, suddenly brought heart-rendingly to the fore by the prospect of guys being hauled off to the pokey just cause some dame got a little excitable and called the cops — well, it’s sickening. Addressing women’s rights does not cause poverty. Addressing women’s rights is not what has built shameful, soul-crushing prison systems around the world. But this exact rhetorical move to connect them causally — oh, women’s rights? But what about poor people and prisons and don’t you even care about social justice at all you privileged witch? It’s numbingly familiar, yet equally stomach-turning every time.

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Conor Foley 08.15.09 at 6:51 pm

Kathleen: But nowhere in the original article or any subsequent post have I written anything which could remotely be interpreted as saying that I do not think that aid agencies and human rights organisations should address women’s rights, or that this is a diversion from combating poverty. Of course it is not.

I am using some very specific examples of legal cases in Brazil that have come to court to illustrate a problem of – what I consider to be – a badly drafted law, which came ab out as a result of a decision by an international human rights body. Since my wife is a judge – and the cases have been in her court – I am referencing her opinions. It is not that she agrees with me, it is that I agree with her. You seem to want to turn this into a ‘boys against the girls’ fight or some kind of guilt-trip about rich privileged westerners. I don’t.

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Conor Foley 08.15.09 at 7:05 pm

DJW. It is my casual observation – mainly based on Brazil. I would be happy to be proved wrong on this and it was one of my motivations for posting this piece. If we could stick to debating what the piece actually says it would make for a more interesting thread.

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Phil 08.15.09 at 10:03 pm

crime in Britain has risen 4700% since its trough

I’m sure there was a real rise in crime between (say) 1960 and 2000, but there’s been an equally real fall since then – and while the fall appears to be much smaller than the rise, we should also remember that crime is much more thoroughly and accurately reported and recorded than it was even 20 years ago. The prison population rose while crime was rising and went on rising while crime was falling; it’s very hard to identify any contribution to the crime rate made by incapacitation.

this exact rhetorical move to connect them causally—oh, women’s rights? But what about poor people and prisons and don’t you even care about social justice at all you privileged witch?

No. What about the predictable consequences of this particular proposal to advance women’s rights in this specific way? And nobody’s name-calling, with the possible exception of you.

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Salil 08.15.09 at 10:18 pm

Conor, reposting because for some reason part of this text came with strike through…. you are right; most folks Amnesty is recruiting – at the international secretariat or at section-level, to work on ESC rights, are those with an expertise on ESC rights advocacy – they’re not necessarily economists, sociologists, or cultural experts. This division of CP/ESCR is a cold war relic; advocating the rights of the poor is one thing; advocating for legal solutions to problems that can be addressed in other ways is a different issue altogether. And as the Sachs/Easterly debate shows, even among economists, there’s a division on how the ESC rights challenges can be addressed. Budget analysis, and advocating for “greater resources to be given” to a specific cause, don’t really help address the problem. Disclosure: I worked for seven years at Amnesty on business and human rights, and continue to be associated with that fine organisation in informal ways, but Conor’s analysis here is provocative as usual, and he is right on questioning the “mission creep” many NGOs face a point Jagdish Bhagwati notes in his book, In Defense of Globalisation. And yes, I notice someone earlier praised Indian and South African achievements in the ESCR arena. Yes, the courts passed some pathbreaking judgments in the 1980s in India, and in South Africa post-apartheid, but the lack of implementation of subsequent rulings has shown up the relative hollowness of those verdicts (and there’s even some backlash against public interest litigation in India), and undermines the argument that legal remedies are sufficient to secure rights. Many NGO activists don’t like the phrase “economic growth” because it implies recognition of the virtues of market-based, private-sector oriented economics, but unless there’s wealth, what can one distribute? But I should stop there; the discussion goes away from the original theme of Oxfam believing it has achieved something by passing a law in Malawi. In India we used to say you can’t feed people statistics of economic growth. Likewise, you can’t provide remedies by passing laws alone. Thanks, Conor, for continuing to challenge thinking in the NGO-dom.

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Randy Paul 08.15.09 at 11:29 pm

Conor,

I’m also married to a Brazilian (although we live in the US). She has an aunt who retired from a career working for the state of Minas Gerais which, if I recall correctly, back when Itamar Franco was governor, spent nearly 70% of its budget on pensions for state employees.

This aunt retired in her early fifties and receives a pension in excess of R$10,000 per month (roughly US$62K/year). Her two children are grown and in their own careers. She has far more money than she needs.

My wife also has a cousin whose boyfriend retired at 51 after working for what was then CVRD now Vale back when it was still a government entity. He’s doing quite well and would be too young to get social security in the US.

I’ve always felt that the public employee pensions issue stemmed largely from a desire during the Vargas years to build even more loyalty among public employees. What is interesting in Brazil is how big the public sector became under the right.

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Randy Paul 08.15.09 at 11:34 pm

One other thing, if I recall correctly, the PT before Lula became President fought Cardoso tooth and nail to keep from changing the pension system. It is one of the delicious irnoies of politics, I suppose, that Lula was the one to change this when he moved into the Palacio de Planalto . . .

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Biba 08.18.09 at 1:29 am

Much better place than CIF for your opinions Conor.
After reading KL’s post I was pulled a little more in her direction. Nevertheless I’d be very interested to see answrs to your questions:
Has it led to more prosecutions …. what has happened at the trials? Have more people been imprisoned ….what impact has this had in discouraging further offences? What have been the financial costs of implementing the new law … how effective has it been ….?
I suspect many women will be very reluctant to criminalise their violent husband / partner. They might face the wrath of their own family as well as their inlaws. If the sentence for a violent male is counselling would that be more or less effective than hard time in curbing domestic violence toward women.

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Lisa 08.18.09 at 4:04 am

I don’t know enough about aid, etc. to generalize but what I would wonder is whether Oxfam is working with local political groups to help them develop and advance their own agendas. Does the problem end at ‘not knowing enough’ or does it go deeper into the fact they are not plugged in to local politics? Maybe there are countries where there are no local organizations, no grassroots, no groups and no people (women) with views about what is needed. Some organizations behave as if this is the case in countries where it isn’t. Is Malawi completely bereft of local activists, reformers, lawyers, etc.? I’ve never been to Malawi but somehow I’m sure it is not. (Obviously, not every Malwian lawyer is going to be a sage on legal reform, not every women’s group is going to have an agenda Oxfam is interested in advancing perhaps.)

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Martin Bento 08.18.09 at 4:59 am

I don’t know enough about these NGO’s to know whether mission creep is a general problem or not. This specific law seems to have serious problems though.

People are being imprisoned without due process of law, not for crimes they have committed (which have not yet been proven), but to prevent future crimes. This is exactly the last ditch justification coming for American rendition programs, and the latter have a stronger case, as mass murder is a more serious crime than wife beating. However, “let the government lock up whomever they think is guilty or may become guilty of an offense” is a system that has been tested historically, and I wonder if anyone can come up with an example of such a system that has not been grossly abused. We have presumptive innocence and due process of law for a reason. The notion that this is only a concern if we stipulate that there is some widespread use of false allegations by women is deeply wrongheaded. First, it does not matter if it is widespread, if you have to choose between imprisoning the innocent and letting the guilty go free, you let the guilty go free. It applies to those in Gitmo and it applies to drunken wife beaters. If the government is as willing to strip rights by punishing the innocent as it is to protect them by punishing the guilty, it has no moral authority to punish anyone, as the harm it does is more certain and more direct than the good.

Self-determination means people decide for themselves what is in their own interest. If you advocate something that is opposed by someone, you do not get to claim to speak for that person; you do not, by definition. So let’s drop the “we’re speaking for half the poor automatically because we claim to speak for women” stuff. It may well be that a given woman will suffer more from having her husband or lover in prison – financially, emotionally, whatnot – and I don’t see how her knowledge of this can be inferior to that of remote first world figures whose judgments are not even based on specific knowledge of her situation, but rather on categorical assertions.

Finally, Kathleen, this snark about “feminist bingo”. Yes, I’m sure you and others who make similar arguments have heard objections along the lines of what I am making here: these are obvious problems, after all. Pointing out that you’ve heard the objections before, though, is not an argument, and treating it as a devastating retort suggests than you have no actual argument worthy of the term to offer.

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Lisa 08.18.09 at 6:18 am

Martin I think your argument may imply that all criminal law should be abolished. Do we know that there is widespread imprisonment of the innocent there? Don’t these issues apply to punishment more generally?

As long as everyone is willing to let go of any law protecting one person from being beaten and abused by another then I see a basic consistency in the arguments raised here. If not, I am wondering why these arguments do not apply to other cases, since the general worries over the harms of imprisonment seem to apply. Otherwise, don’t we have to swallow the idea that once a woman marries, she’s fair game for beating as far as her husband is concerned? And that this is a special case of bodily harm to another person we must protect people from being unjustly prosecuted for? It is only natural to ask why this is to be the special exemption.

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djw 08.18.09 at 6:42 am

Conor, thanks–I posted a longer reply but it didn’t survive the 09 CT meltdown. You may well be right about the likely results of the constitutionalization of Social and Ecomonic rights, but two things:

1.There is at least one case in which the constitutionalization of SE rights facilitated an outcome that was broadly in an egalitarian direction–Hungary in the 1990’s. In fact, the Court was able to resist IMF pressure to cut social spending when the legislature was not (much of the social spending was cut, anyway, so it’s hardly a huge victory but it’s significant and worth noting).
2. It’s way too early to say anything conclusive about SE rights provisions in the Indian and S. African constitutions. Constitutional provisions might prove useful quite a long time after they are adopted (14th amendment being an obvious example). Obviously, they haven’t been enforced in a meaningful way; in poor societies such as those they clearly have an aspiration quality. They may turn out to do more harm than good, and I’m far from certain they’re going to be important in future progressive social change, but it’s way too soon to say.

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Martin Bento 08.18.09 at 8:49 am

Lisa, the following principles, I would say, do indeed apply generally to criminal law in democratic societies and should in all societies. What is different is how this particular law operates, not that the crime concerned is battery against women:

1) People can only be imprisoned for crimes that have occurred, not for crimes the authorities believe may occur. For the latter, restraining orders are as far as we go. The cops can’t say “look at these gang-bangers! Most have long criminal records. Bet most couldn’t pass a drug test. Let’s lock them up before they cause trouble”. That’s what “preventative detention” means, and it is a deep offense against justice. Note that personal history does not change the situation. If two gangs have a history of fighting, it may indeed be reasonable to suppose they are likely to fight again, but that doesn’t justify sending people to jail to prevent it. According to Conor, the Brazilian law allows this.

2) If the victim does not seek incarceration, and is mentally competent, in whose name is it being sought? This gets a little more murky in that Western Law recognizes victimless crimes (a debatable position, though), but battery is not one of those. There is clearly a victim to any crime of battery.

3) An accusation of guilt cannot be taken, in itself, as proof of guilt. Accusations can be mistaken and can be made in bad faith. This is presumptive innocence. In this case, we are often dealing with accusations that have been withdrawn in any case. As for how widespread imprisonment of the innocent is, before people are tried, we have no estimate, but, more basically, part of the reason for trail is to evaluate cases individually. Also, the law should be biased towards innocence, because if the state is as willing to impose injustice as it is to defend against it, it has no moral authority to claim a monopoly of violence: most anyone could meet that moral standard.

I don’t think anything I’m saying here is particularly radical or anarchistic: no preventive detention, innocent until proven guilty, pretty basic stuff. Criminal law has long functioned on the basis of these principles, and it has not led to the collapse of the state.

Lisa, you and some others seem to think that we should only be concerned with these matters if there is proof of widespread lying among the accusers. First of all, “widespread” matters not at all. The government’s moral authority relies on it doing all it can to never convict the innocent. Realistically, there will probably always be some innocent people convicted, but the obligation of the government to prevent this is stronger than its obligation to punish people for offenses. First of all, punishment for an offense is always a balancing of harms: the rights being taken from the prisoner must be balanced against the greater good achieved by imprisonment. But it is a balance: imprisonment is a deep violation of human rights and therefore can never be considered a good thing in itself. Imprisoning the innocent, though, is a pure harm; there is no countervailing good that comes of it. And asking for proof of widespread false accusations gets the case backward: you’re demanding proof of innocence rather than proof of guilt.

Note that none of this means what you and Thomas seem to think it does: that the state must never incarcerate. Simply that incarceration is a harm, not a good or neutral act, and it therefore must be affirmatively justified.

Finally, part of the whole point of courtroom procedures is to evaluate cases individually. Under this law, woman who know a great deal about their own situations and their own minds are having their choices overridden by people half a world away, who with perfect confidence make categorical judgments.

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ajay 08.18.09 at 1:49 pm

“People can only be imprisoned for crimes that have occurred, not for crimes the authorities believe may occur…If two gangs have a history of fighting, it may indeed be reasonable to suppose they are likely to fight again, but that doesn’t justify sending people to jail to prevent it. “

Not really true – you can imprison someone without trial – i.e. before their trial occurs – if you think they might flee the country or reoffend before their trial if left at liberty. It’s called being remanded in custody. If you arrested a member of Gang A for killing a member of Gang B, it would be quite OK to remand him in custody if you thought that, if released on bail, he would try to kill more members of Gang B. If you arrested a man for assaulting his wife, you could remand him in custody if you thought that he would otherwise assault her again, perhaps more severely, for having got him arrested the first time.

I’m a little concerned that you seem never to have heard of this.

Also, you seem to think that every criminal case (except, presumably, murder?) requires the victim to bring suit against the criminal. Most countries haven’t actually followed this approach since the Middle Ages.

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catherine 08.18.09 at 1:53 pm

I am very encouraged that ngo mission creep is being questioned here in provocative ways, and that the 80s and 90s anti-violence against women agenda that dominated American feminism can be questioned. The anti-violence position of feminism during the American culture wars eclipsed the problem of being for economic and social justice. It doesn’t have to be an either/or situation — it is just that historically, feminists were much more mobilized by a question of unmediated violence question rather than the class question, which brings about violence but as a secondary consequence. I also think that debating this issue as a boy – neutral vs. girl emotive confrontation is extraordinarily unproductive. If violence against women should be the priority of social policy making in either Malawi, Brazil or Afghanistan, I want to hear rational arguments about this.

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Conor Foley 08.18.09 at 2:02 pm

Thanks for the comments . I agree completely with Randy and Salil (naturally).

Biba – ‘long time, and you are right. CiF do pay (modestly) and reaches a wider audience, but some of the debates were getting wearisome. Let’s see how long these nice people let me stick around here.

Lisa, just to place my comments about Brazil in context, I am currently working on a project looking at how so many people end up in pre-trial detention in Brazil. I started off, as I often do on human rights issues, going through the Amnesty reports over the last few years and found them rather thin on this subject in general and with what seemed – in my opinion – far too glib an analysis of the new DV law. I think that Amnesty is a recognised centre of excellence on the issue of fair trials and wrongful detention and so I was a bit disapointed that it did not have any deeper analysis.

DJW thanks I did not know that about Hungary.

Martin and Lisa – good points, both ways, and I will think about them some more.

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ajay 08.18.09 at 2:05 pm

I should also note that Conor may have misread the report – either that or it misrepresents the Maria da Penha Law.
When he says “what happens is that a man (often drunk) threatens his partner and she (or a neighbour) call the police. When they arrive they can take the man into preventative custody where he will stay for several months until a judge holds a preliminary hearing (the backlog of cases in Brazil is huge and most courts have several thousand cases sitting there)”
he seems to be implying that the decision on preventative custody is made by the police, and that the arrested man doesn’t get to see a judge for months.
This isn’t true. The decision is made by a judge, as are decisions on other protective measures like exclusion orders.

No doubt Brazil’s prisons are horrible places. But that is not the fault of the campaigners against violence against women. It’s the fault of the Brazilian government – and that includes the judges, who are sentencing far too many people to long prison sentences and producing overcrowding. If a judge doesn’t think that a man needs preventative detention – if he or she looks at the case and concludes it was just a late-night shouting match – then the judge is perfectly able not to detain him! If, for that matter, a case comes to trial and the victim testifies in favour of her supposed attacker that the whole incident was nothing more than a heated argument – then, too, the judge is perfectly able not to sentence the man to prison.
But the answer is not to oppose new laws aimed at reducing serious violence for fear that they will overcrowd the prisons further.

(And there are some other irrelevancies in the original post: no doubt Brazil’s state pension system is overgenerous, but what on earth has that got to do with the case?)

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Sebastian 08.18.09 at 3:55 pm

As a political economist there are some features in this that I seem to recognize.
One of the big debates in the reform and (economic) transitions literatures is about taking into account local circumstances in economic reforms.
The big (and justified) critique of the IMF (and to a lesser degree the WB) was that they didn’t.
I think the “local circumstances” people are increasingly winning this debate – and rightly so.
One of the not so well known, but to me most convincing statements on this is:
Woodruff, David M. (2000) Rules for followers: institutional theory and the new politics of economic backwardness in Russia. Politics and society, 28 (4). pp. 437-482.

Transferring legal institutions in other realms is bound to have similar problems. I think everyone here would agree that reducing domestic violence in Brazil (as in other Latin American countries about which I know more) is a crucially important policy goal. Conor’s point seems to be to me that local knowledge is crucially important in order to achieve that (and similar) goals and that NGOs whithout such experience should stay out of it. I would have thought that’s relatively uncontroversial up to here.

The second part about the debate is about Conor’s assessment of the Brazilian law, where I don’t have any expertise and it could be that he’s terribly wrong (and a whole bunch of Brazilian feminists who indoubtedly do have local knowledge seem to think that he is). But for that part of the debate one needs local knowledge.

The one part where I’m getting confused about Conor’s argument are the “costs”. His argument against the law up to then seems to be built on unintended consequences. But then he switches to an argument based on distribution of scarce goods, which seems a lot more problematic to me. So which is it Conor?

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Conor Foley 08.18.09 at 5:41 pm

ajay: you are confusing a couple of different points and also misunderstanding the way that the Brazilian criminal justice system works in practice. If the police arrest someone in the act of committing a crime than they can hold him or her in custody until a judge considers the case (as is the case elsewhere). However, they do not need to actually bring the person before a judge until the initial hearing and this usually does not happen for several months.

The judge will make a decision on whether that person should be released or held within the first 24 hours and that will depend partly on the seriousness of the charge and partly on the specifics of the case.

Unfortunately, there are nowhere near enough public defenders in Brazil to attend to people’s right to a defence and so judges tend to give considerable weight to the gravity of the charges against the accused when deciding whether to release them. One of the impacts of the Maria da Penha Law is that increases the severity of a number of categories of charges and so increases the likelihood that someone charged with them will remain in prison prior to any serious consideration of their case. This is a general problem of the criminal justice system and I was using short-hand to describe how it sometimes impacts on certain cases. I was not arguing against treating crimes of violence against women more seriously.

On your point about victims of violence testifying in support of the people who have inflicted this violence – yes, you are right, this could happen and would probably result in the man being acquitted. But should such trials have gone ahead in the first place?

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Conor Foley 08.18.09 at 5:59 pm

Sebastian – with the greatest of respect to the commenters who have disagreed with me here, none of them have complained to be ‘Brazilian feminists’ and ajay is the only one who has taken issue with me on how the Brazilian legal system works.

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Sebastian 08.18.09 at 7:10 pm

Conor – that was actually intended a defense of you against some of the more accusatory comments – particularly those from Kathleen, who I assume is the same Kathleen Lowrey who works on indigenous communities in the Chaco –
I very much agree with you that people should understand first hand what’s going on in a specific situation before proposing/supporting reform and I’m a bit bewildered that it’s an anthropologist of all people who voices the strongest opposition.

But you say yourself (comment 10) that “there are many Brazilian feminists” who would agree with Kathleen on that particular point – that’s where I took the Brazilian feminists from.

I’m still curious about economic costs vs. unintended consequences. I do think the economic costs argument does have a ring of prioritizing other aspects over women’s rights, which is why I don’t quite understand where it comes in. The unintended consequences argument (something along the lines of husbands coming home after 7 months of jail are a lot more likely to be chronic wife-beaters) seems more relevant (and certainly not anti-feminist) to me.

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Kathleen Lowrey 08.18.09 at 7:57 pm

Sebastian, I’d just like to note that it is not *me* who is “proposing reform” in a nation of which I am not a citizen nor a voter, but Conor Foley. The law in question has — from his presentation of it — already been passed by the Brazilian legislature. Now, I’m no Brazilian feminist, but I am nevertheless under the impression that Brazil is a parliamentary democracy; that its legislators are elected by Brazilian citizens, and that if a law is passed in Brazil it represents in some important – albeit surely imperfect – sense the will of the Brazilian people.

After the fact, Amnesty issued a statement to the effect of “yay, way to go Brazilian legislature!”. Conor Foley seems to be suggesting — though his line of reasoning is rather swervy once it comes to anyone offering criticism — that Amnesty’s attitude, instead of endorsement, should have been one of critique of the legislation. That actually is a proposal to influence process, is it not? Which he purports to lament in the case of Malawi — which, funnily enough, was again an instance of legislation in favor of women’s rights. Do you see the pattern here in spite of his ducking it?

It is Conor Foley who has cast this as a contest between “rights and democracy” and has created an argument to the effect that a law that advocates for women is a threat to the very soul of the democratic process (and prisoners, and poor people, and hospitals, and most of all, to men who were just threatening their wives and girlfriends in a “very minor” way). There is something nasty about that, and doubly nasty is the fact that most CT commenters are shocked and appalled that I am so rude as to point it out.

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Conor Foley 08.18.09 at 8:03 pm

Sebastian: thanks for the clarification and apologies for misunderstanding your comment.

My original article was a (friendly) critique of what I see as a trend of human rights and aid agencies to congregate on the same ground, rather than concentrate on their own specialisms. That is something I address a bit in my book on humanitarianism, which comes out of a set of experiences working in conflict zones, but I think the critique goes wider than that.

My point here is that I think that Amnesty does have expertise in the areas of both criminal justice reform and the issue of violence against women – and I wish they would deploy it. Human Rights Watch, for instance, have just published a very interesting critique of the treatement of sex offenders in the US, which I might post up with a link to in its own right (and no doubt bring even further wrath down on my head from Kathleen). I think that a part of the task of human rights groups is to raise concerns about the treatment of the most marginalised and controversial groups in society (such as suspected terrorists) and encourage rational discussion of controversial issues (even if it means getting shouted at by simplistic, populist puppy-kickers). I worry that part of the reason why Amnesty may be shying away from this issue is that it does not want to alienate its western liberal supporters who write things like ‘No doubt Brazil’s prisons are horrible places. But . . . . . . that does not mean we should be at all concerned about cramming more people into them. [last part added].

On the economic costs and unintended consequences, well it is both. Foreign donors, aid agencies and international human rights advocates are puting an increasing emphasis into drafting the laws (and constitutions) of fragile, post-conflict and poor countries. In my experience these laws are often drafted with little serious thought as to whether the country in question has the resources to implement their provisions at all (a particular concern with land laws and many criminal justice codes) or an overall cost-benefit assessment for that particular society.

So to take the Oxfam and Malawi example, I have no idea about whether this is a good or a bad law, but I am concerned that Oxfam now see pressing for this type of legislation – on an issue where it lack expertise itself – is a good use of its resources. People presumably give Oxfam money in the hope that this will be used to alleviate poverty and suffering. This could be done both through direct project implementation or through advocacy. As it says on its website: “We press decision-makers to change policies and practices that reinforce poverty and injustice.”

But here the advocacy is not in the rich western countries where Oxfam’s supporters are based and whose governments are (arguably) implementing harmful policies and practices. Instead they are telling people in poor countries what to do.

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Kathleen Lowrey 08.18.09 at 8:53 pm

Sigh. Conor Foley, perhaps you should actually listen to some Brazilian feminists. The sex offender laws rightly critiqued by HRW relate intimately to the problem of family violence addressed by better DV & rape legislation of the sort that so disgusts you in Brazil and Malawi. Extremely punitive s.o. laws are based on the fantasy that most sex offenders are monsters who jump out of bushes to randomly attack small children (this relates closely to the idea, extensively discussed by feminists, that the only real rapes are stranger-with-a-weapon rapes).

Taking seriously “very minor” and creeping sexual violence in the home, which is where most sex offenses take place, is part and parcel of constructing a legal framework that addresses the way domestic and sexual violence is actually lived.

Your perspective is part of the problem because it is so common and so absolutely, totally, perniciously wrong. There aren’t three boxes of people: jumpers-out-of bushes, serious wife-beaters, and “guys who get a little drunk and yelly and smacky with their wives/gfs and handsy with their pubescent kids, stepkids, and nieces and nephews and neighbor’s kids, no biggie”.

HRW is saying we can’t have a legal system that treats all sex offenders as (1) but has no suitable legal and institutional means of dealing with the vastly more enormous category of (3); by the same token Brazil seems to have recognized it’s no good to have a legal system that addresses (2) but sweeps (3) under the rug.

(3) is a huge deal and the legal system needs to deal with (3), not pretend it doesn’t exist or is no big deal even if it does. Making laws for (1) and (2) only is a recipe for disaster. The “Brazilian feminists” upon whom you have heaped such contempt know it and you don’t.

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Salient 08.18.09 at 9:31 pm

(3) is a huge deal and the legal system needs to deal with (3), not pretend it doesn’t exist or is no big deal even if it does.

I still don’t get why you insist “having a law against (3)” is essentially the same thing as “locking up people who are accused of (3) for months before they have a trial or access to any legal recourse, even if the identified victim protests that the arrest is unwarranted.”

It’s the latter getting protested, not the former.

I don’t like the idea of locking up accused murderers, or alleged defrauders, or whoever, for months before they have a chance to enter a plea or issue a legal defense of themselves. Isn’t this what ‘innocent until proven guilty’ means?

I think you are conflating getting locked up for allegedly committing a crime with having the right to see a judge and plead your case within a reasonable amount of time. The right to a speedy (pre)trial.

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Kathleen Lowrey 08.18.09 at 9:43 pm

Salient — Brazil’s overcrowded prison system has not been caused by this recent piece of legislation.

You are absolutely correct, though, that the defense of women’s rights *in principle* as opposed to the vigorous denunciation of legislation designed in the service of same *in practice* has been deafening here. It makes me think of something – let me jog my memory — oh yes, I believe the Letter from Birmingham Jail has something to say about the fatuous self-regard of that eminently even-handed approach.

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Sebastian 08.18.09 at 9:47 pm

but Kathleen, once again you are accusing Conor of things he doesn’t say!
He has repeatedly said here that he thinks domestic violence in Brazil is a huge problem that needs to be addressed. He thinks that AI should address domestic violence. No one wants to sweep this under the rug. And the reason people here are “shocked and appalled” by your “rudeness” (your words – I’m more annoyed by your monopolization of the feminism label and you acting as if there is no disagreement whatsoever among feminists on these issues – as he probably correctly notes above, Brazilian feminists are on both sides of this debate) is that you continue to accuse him of sexism in no uncertain terms and based on very far-fetched assertions.

He argues with regards to Brazil that the law might very well not be in the best interest of the affected women. Your arguments seem entirely based on the debate in the US/Canada etc. I can’t speak for Conor, but I think that preventive custody etc. are great tools within the context of a more or less functioning legal system – if anything I think they could be used more in Germany – which I know most about – and probably also in the US and Canada. But that doesn’t automatically make them great laws – or victories for feminisms equivalent to what their enactment constituted in many “Northern” countries – in Malawi or Brazil. Now, Conor bases his assessment apparently mainly on the experiences of a Brazilian (female) judge with the law. While that’s not exactly social science, I think it’s a reasonable start. I think he is also right in arguing that a thoughtful assessment of such a law requires a look at possible unintended consequences (I’m still not convinced about the economic part* ) – i.e. how is the practice of this law going to look. And while AI may come to a different result than Conor if they were to conduct such an analysis, I think he is right to deplore the fact that they don’t.

*still not clear on this: If the point is that an underfunded law is sometimes worse than no law at all, I think I agree. But I’m still confused what a cost-benefit analysis would look like. Would you want to calculate if the money – if spent differently (e.g. on women only police stations) would create better effects in terms of protecting women? That seems somewhat reasonable, but you’re not very clear on that. And than the question remains – what are the chances that the money used for law enforcement in these cases _would_ go to fund these programs and not, say, to subsidize the pension system?

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Randy Paul 08.19.09 at 12:47 am

And there are some other irrelevancies in the original post: no doubt Brazil’s state pension system is overgenerous, but what on earth has that got to do with the case?

Because when a state has to spend some 70% of its revenue on pension payments, it is exceedingly difficult to hire qualified police to enforce laws regarding violence against women and pay them a decent salary.

Indeed, an ongoing problem in Brazil is the quality of the policing. Among the most poorly paid are the Policia Civil, who are responsible for forensic work, detective work and investigations. One would think that this would be obvious.

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Salient 08.19.09 at 1:40 am

Salient—Brazil’s overcrowded prison system has not been caused by this recent piece of legislation.

I’m, uhh, not worried about the poor ol’ prisons.

People ought to have a right to a swift trial, the right to plea their case and attest to their innocence or guilt before a judge (and preferably before a jury of their peers), et cetera. As I said, the concern is: “locking up people … for months before they have a trial or access to any legal recourse, even if the identified victim protests that the arrest is unwarranted”

Sounds a lot like Guantanamo. Bagram. Et cetera.

Even if the jails in Brazil were empty, I’d be protesting this.

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Salient 08.19.09 at 1:44 am

Reposting to try to avoid whichever word triggered moderation queue:

Salient—Brazil’s overcrowded prison system has not been caused by this recent piece of legislation.

I’m not worried about the prisons.

People should have a right to a swift trial, the right to plea their case and attest to their innocence or guilt before a judge / a jury of their peers. The concern is as I stated above: locking up people who are accused of (3) for months before they have a trial or access to any legal recourse, even if the identified victim protests that the arrest is unwarranted.

Sounds very problematic — even if the jails in Brazil were empty, I’d be upset.

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ajay 08.19.09 at 10:58 am

53: On your point about victims of violence testifying in support of the people who have inflicted this violence – yes, you are right, this could happen and would probably result in the man being acquitted. But should such trials have gone ahead in the first place?

Do Brazilian prosecutors not have the discretion to drop cases which they do not think are winnable? That would be rather odd.

Unfortunately, there are nowhere near enough public defenders in Brazil to attend to people’s right to a defence and so judges tend to give considerable weight to the gravity of the charges against the accused when deciding whether to release them. One of the impacts of the Maria da Penha Law is that increases the severity of a number of categories of charges and so increases the likelihood that someone charged with them will remain in prison prior to any serious consideration of their case. This is a general problem of the criminal justice system

Frankly, it sounds like the main problem of the Brazilian justice system is neither foreign interference nor strict DV laws but lazy, inept judges.

57: the advocacy is not in the rich western countries where Oxfam’s supporters are based and whose governments are (arguably) implementing harmful policies and practices. Instead they are telling people in poor countries what to do.

Oxfam does actually advocate for policy changes in rich western countries where its supporters live. One example: debt relief for poor countries.

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Salient 08.19.09 at 11:33 am

Frankly, it sounds like the main problem of the Brazilian justice system is neither foreign interference nor strict DV laws but lazy, inept judges.

Eh. If you had said “neither foreign interference nor strict DV laws but insufficiently many judges and/or unsatisfactory availability of public defenders” instead of “lazy, inept judges” this would make sense, but it’s not the job of a judge to provide defense council to defendants, and there’s no indication given anywhere that judges are sitting around twiddling their thumbs instead of processing cases about as quickly as it’s reasonable to do.

That bit of anti-judge-trolling aside, I think I’m in overall agreement with you — the impropriety of any law that “provides for preventative pre-trial detention” is directly proportional to the typical amount of time elapsing between arrest and trial.

The pre-trial detention provision of this law might not be so bad, if arraignment occurred quickly, and if the identified victim has the opportunity to insist that the charges be dropped. [ Note: the latter might not seem quite as important as the former, but there ought to be some way to petition the courts as an identified victim and say “hey, this is a mis-identification and I protest it, I am not a victim of this.” ]

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Conor Foley 08.19.09 at 12:06 pm

I am glad to see Kathleen agreeing that the HRW report into the treatment of sex offenders in the US has made a worthwile contribution to the debate about this issue and so fail to see why she takes such exception to my original suggestion that there was a need for a similar type of report by Amnesty in Brazil. My post actually argues that the resources that Amnesty is putting into its current campaign on economic and social rights could be better used in the area of combating violence against women and monitoring criminal justice systems – which are its core competencies.

Kathleen, if you come across a book called Human Rights Human Wrongs, which I wrote 15 years ago, you will actually find exactly the same arguments that you put forward above on violence against women in the public sphere and the need to reform laws on DV, rape and homicide.

http://search.barnesandnoble.com/Human-Rights-Human-Wrongs/Conor-Foley/e/9781854890771

It is actually a fairly standard text book on human rights courses

http://www.unu.edu/ic/spring99/ic803.html

Salient: yes one of the key failings is a lack of public defenders (Sao Paulo only has 37 to cover all of the prisoners in the state) but also a massively over-worked judiciary (and police who use torture during interrrogations on a systematic basis, etc.). One of the reasons why there are not enough judges is that the legal system generates a huge amount of cases. This is partly because the creation of a large number of new (and more serious) crimes in recent years – which Law Maria de Penha adds to – and partly because the system provides numerous rights to appeal, which are good in theory, but are really only available to those who can afford expensive litigation in practice. The result of all this is that the rich enjoy impunity (very few people end up in prison for corruption despite its endemic influence) while it is the poor who end up in jail. Of course this is not unique to Brazil but it happens to an exagerated scale here.

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Kathleen Lowrey 08.19.09 at 4:48 pm

CF — You simply are not credible on the subject of women’s issues. The false dichotomies and lines of argument (women’s rights vs. democracy, women’s rights vs. prisoners, women’s rights vs. poor people, “very minor” domestic violence being not a big deal; women reporting violence not being believable especially if they dared to be drinking; the presumption that violence against a wife or girlfriend is different and should be treated differently than violence against any other category of person) you present here are classically anti-feminist. They are the standard arguments of hostility to women’s rights. But look, you have a giant fan club of the lefty male academics who populate CT. It’s like staring into the abyss.

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Salient 08.19.09 at 5:03 pm

It’s like staring into the abyss.

Well, you could explain what’s wrong with protesting that accused persons are spending months in jail before their arraignment and trial. I still don’t understand what you see wrong with protest for the right to a speedy trial.

I would want the same right for alleged murderers and alleged terrorists, and I don’t think the right to a speedy trial with adequate legal representation should ever be abrogated.

I guess I can concede, if the right to a speedy trial must be revoked for some class of offenders, then those the class should be those who commit domestic violence. But I still don’t comprehend the desire for that revocation.

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Salient 08.19.09 at 5:05 pm

the presumption that violence against a wife or girlfriend is different and should be treated differently than violence against any other category of person

(I also didn’t understand this. I personally think domestic violence should be treated differently, and in fact more seriously with stiffer penalties. The Brazilian law also treats violence against a domestic partner as different from violence against any other category of person. You are now saying this is a bad thing?)

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Conor Foley 08.19.09 at 5:17 pm

Kathleen, again:

1. where have I said there is a choice between ‘women’s rights vs. democracy, women’s rights vs. prisoners, women’s rights vs. poor people’? Please point out the specific line where you get that from?

2. where have I said domestic violence is not a big deal?

3. where have I said women reporting such violence should not be believed?

4. where have I argued for ‘the presumption that violence against a wife or girlfriend is different and should be treated differently than violence against any other category of person’?

I have not said anything like that here and I have referred to you a book in which I argue the exact opposite.

You telling me that I am ‘not credible on the subject of women’s issues’ and I am a ‘classically anti-feminist’ is a content-free insult. It would be like me refering to you as an out-of-touch middle-class north American who has racist views about Latin American men. I am not throwing such accusations at you (the point is purely illustrative purposes) but why do you have so little else to contribute to this discussion?

The only point that you seem to be grasping onto from my original post is that the new Brazilian law (which you clearly have not read) ‘imposes tougher prison sentences on offenders, provides for preventative pre-trial detention and enables prosecutions, without the consent of the victim, even where the violence has been of a very minor nature’ and that this might be a cause of concern in a country with such a dysfunctional criminal justice system as Brazil.

The reference to ‘a very minor nature’ is to put into non-legal terminology an offence that would be the equivalent a blow, shove, or slap that caused minor bruising. I am not trivialising this type of violence. I am just saying that is a different – and less legally serious – type of offence than grevious bodily harm, malicious wounding, attempted murder or a homicide offence. What is contentious about that point?

Can I now ask you the same question that I put to you above again. Why do you think that HRW were right to publish a report on the treatment of sex offenders in the USA, but yet you so strongly (and abusively) oppose my proposal that Amnesty produce a similar report about Brazil?

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LizardBreath 08.19.09 at 5:23 pm

Well, you could explain what’s wrong with protesting that accused persons are spending months in jail before their arraignment and trial. I still don’t understand what you see wrong with protest for the right to a speedy trial.

Perhaps that no one did that? If the post were about Brazil’s shameful criminal justice system generally, I don’t think it would have raised any hackles. A post that argues that laws intended to prevent domestic violence are problematic because they put people in Brazil’s shameful criminal justice system, while not mentioning defendants in the criminal justice system for other reasons, suggests that the criminal justice system is tolerable for the purpose of serious crime, but treating domestic violence as serious crime is too much.

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Salient 08.19.09 at 5:45 pm

Perhaps that no one did that?

I did, and was clearly meant to be included in the “fan club.”

A post that argues that laws intended to prevent domestic violence are problematic because they put people in Brazil’s shameful criminal justice system, while not mentioning defendants in the criminal justice system for other reasons, suggests that the criminal justice system is tolerable for the purpose of serious crime, but treating domestic violence as serious crime is too much.

Except the specific protestation was: Lack of appropriate social services means she can rarely refer them anywhere and the new law is likely to lead to a dramatic increase in the number sent to prison. There is at least a debate to be had about whether this is the best way of tackling the problem.

That comment doesn’t tag domestic violence as an unserious crime. It does suggest, correctly, that many perpetrators of domestic violence are alcoholic, drug users, or in need of psychiatric care (which doesn’t relate to my point about right to a speedy trial). In other words, an investment in social services which aim to reduce alcohol abuse, drug abuse, and psychiatric needs might have a better reductive effect on domestic violence occurrences than this law we’re discussing.

As for my point… how to say this. Suppose someone proposed a law which doubled the prison sentences of murderers and burglars in Brazil. Given what I know about Brazil’s criminal justice system, as discussed above, I definitely would have voiced the exact same protest to this hypothetical change in law. I would have the same problem with it: domestic violence is indeed serious crime IMO, and the proposed measures (longer sentences, less speedy trial) are not an appropriate solution to a serious crime problem.

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Conor Foley 08.19.09 at 5:50 pm

Lizard: the post actually says: ‘I live in Brazil and am currently working on an Access to Justice project here’, which I think woud imply that I have a whole series of concerns about Brazil’s shameful criminal justice system, since that is the nature of the project.

The article then makes a point about international organisations – Oxfam and Amnesty – advocating for changes to the laws or constitutions of other countries on issues which are beyond their core competencies. I would like to see Amnesty do more work on women’s rights and criminal justice in Brazil, rather than diverting their scarce resources into vaguely-defined campaigns on other issues.

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Alex 08.21.09 at 12:35 pm

You are actually earning points in a game created by feminist bloggers called troll bingo, which describes the several stereotyped rhetorical moves commenters hostile to feminism consistently make.

You are assuming bad faith for no reason I can see. I don’t think one should always assume good faith in debate, but there is only a limited number of individuals (Tony Blair, David Kane, etc) whose past behaviour justifies shoot-first rules of engagement. Conor is not one of them.

More substantially, I would consider it axiomatic that proposals to increase the power of the state to incarcerate always lead to more incarceration, whatever else they may achieve or not. They are different from many other increases in state power, for example, in the power to regulate urban development or to provide medical care; they belong to a class of powers that are always used, because they cater to the fundamental imperatives of power itself. The state likes locking people up and will always happily do so, no matter what the resource constraints are, because the problems of insufficient resources here fall on the prisoners and prisoners are ipso facto bad people. They’re in prison!

As Jim Henley said, John Yoo didn’t suggest raping terrorist suspects’ children, because state agents don’t aspire to be paedophiles but they do aspire to have unlimited power to interrogate people they arrest by whatever means they like. Similarly, cops love to arrest people and lock them up, and if you give them further powers to do so they will use them, to what end they like.

Police powers, migration control, mental health, secrecy, prostitution, some workplace issues – these seem to be a brief list of topics where the state can be counted on to use whatever powers it is granted to the fullest possible extent, but not at all to the original purpose. This is clearly because they all bear on its relationship with The Other.

Consider the UK’s Prevention of Harassment Act 1997, which was marketed as “anti-stalker” legislation. It defines harassment as conduct likely to cause alarm or distress to a third party more than once. This has since become a common means of locking up political protestors – the police simply decide that your behaviour causes them alarm or distress, and it’s off to the Bridewell. Among celebrated cases, that of Lindis Percy stands out – she was accused of causing alarm and distress to the United States embassy, a first in ascribing emotion to a building, and eventually acquitted. If this is a problem in Britain, which I persist in believing to be a stable democracy with a reasonable judicial system, it is surely one in Brazil.

Police powers are always used, but not necessarily for the stated purpose. I don’t yet know how a mean Brazilian cop would repurpose this power, but then I’m not one; however, I am confident of their malicious creativity.

Further, isn’t it almost *the* crucial issue in any question of development that it is very easy to legislate but hard to implement? Yesterday’s Guardian reported in detail on the problems of distributing medicines in Uganda; they are certainly bought, and shipped to Entebbe airport, and delivered to the national medical stores, but they rarely make it to prescription without going out of date in a shed or being misappropriated.

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Keir 08.21.09 at 1:16 pm

Also, you seem to think that every criminal case (except, presumably, murder?) requires the victim to bring suit against the criminal. Most countries haven’t actually followed this approach since the Middle Ages.

In fact, one of the distinctive things about criminal cases in most countries is that they are brought in the name of the Queen (or whoever), not the name of the victim. It’s R. v Accused, not Victim v. Accused.

(In England, up until the 1850s odd, criminal cases were brought by private persons, but not needfully the victim. Even if they were policemen bringing the case, they were just exercising their rights as private persons. This was admittedly a bit odd.)

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Martin Bento 08.21.09 at 4:55 pm

I was not saying the suit needed to be formally brought in the name of the victim. I was saying that the advocates of the law in this thread are claiming to speak for the victim, and they cannot do that if they disregard what the victim specifically wants.

BTW, ajay, I believe you are misusing the term “protective custody”. People are taken into protective custody to protect them from third parties, e.g., witnesses against organized crime figures, not to protect others from them. Protective custody in this case would mean locking up the victim to protect her from the alleged abuser, something no one here, including, I assume, you is advocating. What we are talking about here is preventative detention.

However, the discussion has shown things to be a bit more complicated than I thought on Conor’s original post.

1) It seemed people were being incarcerated with no due process. Well, a judge signs off, but it sounds very cursory, so let’s say with minimal due process.

2) The victim’s wishes are disregarded in the decision to prosecute. Apparently not, by Conor’s later comment, but I still wonder if the victim’s objections have any weight in the initial incarceration. Conor, does the judge signing off on the initial detention get told whether the victim desires prosecution, and, if so, are they expected to take this into account?

3) The rationale for holding the alleged perpetrator initially includes “preventative detention”. That is to say, the considerations of law include not just the initial estimate of whether a law has been broken or prosecution will proceed, but some opinion (from the cops? the judge?) on whether future offenses are likely.

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Conor Foley 08.21.09 at 6:33 pm

Martin:

1. Is a huge problem. It is partly a result of their workload that the judges don’t insist that the defendant is brought before them, because it is just quicker to look at the paper-work. Also there aren’t enough public defenders and so although these should be petitioning for release they don’t – or don’t do it effectively because they are unlikely to have read the case notes. Basically, the main factor that will depend on whether or not someone gets released at this stage is the gravity of the charge.

2. Is the issue where I have some sympathy for Kathleen’s initial argument (although not her later posts). A victim’s consent is not always needed for a prosecution. For example, if someone has suffered physical violence and this can be backed by witness statements and medical evidence, the testimony of the victim may not be crucial for a conviction. This was an issue – with regard to DV – that we worked on back in the UK because sometimes women may be intimidated out of pressing charges. So removing their ‘consent’ to prosecutions can be a good idea in certain cases. What the new law does is lower the threshold where prosecutions can take place without consent so that rather than just covering cases of serious violence it covers ‘common assault’ as well (ie a slap, a shove, a light blow, etc. which is certainly a crime, but previously would have required consent). This is the change that my wife is so concerned about because by ‘up-grading’ the seriousness of this offence it requires more prosecutions to go ahead, where non-punitive measures may be more effective (mental health treatment, counselling, drug or alcohol addiction services).

3. This is complicated – and part of the main focus of my current Access to Justice project. The courts have extremely wide-ranging powers to order pre-trial detention and frequently seem to do so even when the actual offence does not carry a custodial sentence. Along with the massive delays that take place at all points within the system (we recently had a guy who has been waiting 14 years for his trial) this has led to a huge explosion of the numbers being held in pre-trial detention.

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