We partnered with a number of HLS organizations today to host a talk by Professor Catharine A. MacKinnon, an expert in sex equality issues under international and constitutional law. If you missed out on the lecture (maybe because the room was so packed!), check out a recap of today’s live blog, cross-posted with the Journal of Law & Gender.
[Wrapping up discussion now -- a quick reminder that, unless content is in quotes, it is merely paraphrased language from today's discussion. Special thanks to all the co-sponsors of today's event and, of course, to Professor MacKinnon for a fascinating lecture and thoughtful Q&A session.]
The idea that non-state actors can do major damage is not news to peoplle who have been working to fight gender crimes for years.
Q: There seems to be some fear that the development of international law that would better recognize women as victims could have a spiraling effect — as women are more recognized, countries (particularly the US) might give less credence to a system that recognizes them.
A: The US isn’t a party to the ICC, and international law developments that continue to take seriously violations against women are still improvements for women around the globe. “The US can participate in important change taking place in the world or it can be left in the dust.”
Question: What are the costs and benefits of separating out gender among other groups, including refugee and asylum-seekers?
A: It would be an improvement to recognize gender crimes specifically as a foundation for persecution. It could be pulled in as part of a brief that recognizes gendered crimes among others.
On the criminal procedures that often “re-victimize” those have been victims of gender crimes: Have you seen countries that have addressed these issues well?
A: Not yet — “I’m looking.”
“They need to take consent out … and have sexual assault be something that is sex with force.” Consent has come to have this presumption that has meant unless you stop it physically — and even if you do try to — you can still be considered “consenting.”
Force — physical and hierarchical — should be the focus of the rape definition.
“If rape really is a gender crime, a coercive circumstance is sex inequality.”
Question 1: What could the effect of progress in international law have on domestic law?
A: If it’s easier to recognize these crimes when they’re committed far away and by others you don’t personally know, perhaps it could have a major impact. … Possibility of developing a real recognition of these atrocities exists, and it could change the way rape law is defined around the world.
On “anti-fragmentation”: we’re uncovering this issue that has been addressed by all these rubrics but possibly hasn’t been truly addressed.
[A very packed room is emptying out some as folks head to class -- relief!]
Times for questions and discussion!
Opportunity: ICC and other international institutions could begin to know what women know — there will be no collective security in a world with gender injustice.
As of yet, there is no “post-conflict of gender crimes,” because the conflict goes on. This is a continuing siege against humanity.
Men’s clarity about other men’s actions improves with distance because they’re less likely to relate to those other men.
The international arena opens a particular opportunity — to have women’s issues brought to the forefront, away from “the men at home,” who are “the least likely to do anything about these violations.” Those men are the most likely to do these crimes themselves and to identify with other men who commit these crimes.
Should rape be a separate international crime? What is at stake in allowing it to be part of other recognized international crimes?
That’s how the Rome Statute is so unique from previous international law — the Statute attempts to delegitimize these crimes as a means of gaining power.
Committing gender crimes traditionally has not removed legitimacy from the males who commit those crimes; in fact, it may even have increased their legitimacy among their male peers.
Women traditionally have obeyed laws more than men have — why? Socialization?
Answer may be that, as to gender crimes, men may enforce laws in ways that reinforce male power.
Why have laws against gender crimes not been obeyed domestically OR internationally? Women who have been victims of gender crimes live “on the other side” of the idea that almost all nations follow almost all international law almost all of the time [paraphrasing Louis Henkin].
Question: What light does the literature on the creation and development of international law shed on these issues of gender crimes? “Virtually none — no light.”
Many of these crimes have never been taken seriously before — internationally or domestically — and the procedures of “fair trial” and “right to face your accuser” do not correlate to these gender crimes.
Campaigns of crimes against humanity…are organized along hierarchical lines (of which gender is one), rather than being of “the old world model.” Gender crimes are prominent in ICC prosecutions b/c they are prominent in the contexts being prosecuted.
Rapes that are crimes against humanity are greater in frequency, if not any more intense than rapes outside of conflict zones.
“Weaponized rape proves to be a highly flexible tactic for all these criminal strategies.” The use of sexual atrocities is “functional” in so many criminal contexts.
Most striking quality of the pursuit of these crimes by the ICC has been … how central the gender crimes have been in the prosecution of individuals. [MacKinnon outlining numerous examples of the ICC highlighting gender crimes in numerous prosecutions.]
Gender crimes in Rome Statute do not include specific protections for gays and lesbians, but of course “they are covered as women and men.” And crimes committed against them are almost always highly gendered.
In Rome Statute … we see th idea of gender crime being referred to explicitly, both in a description of the crimes and how victims of these particular crimes should be treated.
Systems began recognizing that sexual assaults are “based on the gender of women and girls” who are attacked.
International criminal and humanitarian law began paying more attention to rape in conflict than it ever had.
Gender crimes essentially evolved from women telling women their stories, to an international norm, to an international crime in a few short years.
“You sometimes get further in [addressing] gender crimes, when neither ‘sex’ nor ‘equality’ are on the page.”
From the late 1980s to the early 2000s…attention to gender crimes was paid again in the criminal system on the international level, not just the human rights level. Ad hoc tribunals began holding individuals criminally liable for their actions and recognizing responsibility among superiors.
Many central cases recognizing gender crimes have been in Europe and Latin America, where organized groups of women have had remarkable impacts on the legal system.
Once crimes such as rape were seen as crimes against a group, the law could respond very differently.
How was the law re-contextualized to recognize gender crimes? “By women listening to women.” Therefore, while victims of these crimes are often individuals, the violation is seen as one against a particular group.
Sexual harassment law of 1970s transformed our understanding of gender crimes. “Rape was first legally recognized as being based in gender inequality.” The lesson: sex crimes aren’t just violence or violation of community rules; they are gender-based. They happen because of one’s gender.
“In one form or another, gender crimes actually are illegal” in virtually every legal system in the world.
As atrocities have become more visible and more women have come forward with their stories, these crimes have gained increasing recognition.
Gender crimes have gone from “virtual non-recognition” only a decade ago to “accepted institutionalization” — incredibly quick legal change.
CM on her accomplishments: All I ever really see is how much more needs to be done.
Prof. Diane Rosenfeld on Prof. MacKinnon: “[She] has done more to change and improve the lives of women around the world than any other woman today.”
Introduction from Prof. Mindy Roseman, director of the Human Rights Program.
Folks are gathering in a packed room. Ready to get started!