Abstract

Excerpted From: Deborah M. Weissman, Gender Violence as Legacy: To Imagine New Approaches, 20 Hastings Race and Poverty Law Journal 55 (Spring, 2023) (108 Footnotes) (Full Document)

Over the past several decades, advocates and scholars have challenged strategies of policing, prosecution, and incarceration as response to gender violence. A paradigm shift in the making suggests new understandings: that the criminal legal system in fact tends to produce and perpetuate patterns of harm, including racism and poverty. An expanding critique of carceral approaches to social problems has led many to question the efficacy of traditional criminal system responses, in efforts to seek alternative collaborative means of address social problems.

This essay considers gender violence as a consequence of systemic problems rooted in patriarchal structures, transacted through poverty and inequality, and embedded in a historically conditioned political economy. It is informed by the scholarship that propounds the need to develop community responses independent of the carceral system as a means to address the systemic source factors that contribute to Intimate Partner Violence ("IPV"), with attention to restorative and transformative justice approaches (RJ/TJ). This essay advances anti-violence scholarship to suggest the need to reconceptualize gender discrimination, poverty, and inequality as cause and consequence of social ills, and, moreover, to contribute to social theories about harm. That is, to understand the political economy as the structural environment from which the social pathology of inequality originates--a factor inextricably related to IPV--as a legacy of colonialism and slavery. In sum, these matters are best considered in historical context and addressed through tools and approaches offered by RJ/TJ.

It is useful to contextualize the origins of social ills as outcomes of historical relationships associated with colonialism. Colonial systems summoned into existence racial hierarches and patriarchal forms through which they exerted power and have shaped the current political economic landscape, including the character of the harms endured by communities, families, and individuals. The consequences of wealth extraction, labor exploitation, and the attending ideological rationale contributed to the immiseration of vast numbers of people as a matter of racial and gender categories. Stratification economics debunks the notion that subordination is a consequence of individual or group failings or self-defeating behaviors and demonstrates the durability of the harms of the theft of wealth and resources in its many forms. William Darity explains that the "existence--indeed persistence--of income, but especially wealth [] inequalities" is "the central problem" that affects social disorders.

An examination of the workings of colonialism has added a new understanding of oppressive gender hierarchies and the violence that may follow gender inequality. For instance, patriarchy derived from colonial invocations of the absolute authority of a monarchy created deep gender divisions manifested in the subordination of women. Colonialism shaped ideologies of masculinities to "produce[] a cultural consensus in which political and socio-economic dominance symbolizes the dominance of men and masculinity over women and femininity." Colonialism also has resulted in "the enforcement of gendered and racial differences from the most intimate of circumstances--within households and families--to the most public." Expansion of colonialism in the United States extended patriarchal norms on many indigenous communities through the imposition of "male dominance in societal arrangements" Settler colonialism often disenfranchised Native American women from previously established matriarchal systems and practices that were demonstrated to mitigate IPV.

The historical sources of inequality and the shaping of gender hierarchies traced to systems of colonialism suggest new ways for advocates to address the structural sources of these harms. RJ/TJ approaches are well-positioned to deploy historical analyses to address the systemic factors to which carceral responses ignore. RJ/TJ strategies can address the more immediate harms of IPV while seeking structural changes related to past harms.

Part I begins with an overview of the explanations of RJ/TJ approaches and identifies the challenges of defining and implementing these processes. Part II provides an overview of the concerns related to carceral approaches to IPV and further describes the political economic factors that contribute to gender violence. This further contextualizes the rationale for the turn to RJ/TJ. Part III argues that the inequality intrinsic to social problems-- including IPV--is derived from economic structures, social relationships, and racial hierarchies with origins in historic wealth extraction and colonial exploitation--an explanation that promises a more robust understanding of the problems to be addressed. Part IV suggests that the relational and structural approaches associated with RJ/TJ are well-suited to address the need for personal healing and the systemic changes by which social ills might be mitigated.

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This essay subscribes to the theoretical and practical work that seeks to address IPV as a function of a political economic environment with antecedents in the violence and subjugation attending colonial expansion. It argues that current conditions of socio-economic inequality that contribute to IPV are products of the "accumulating force of the weight of history." Mike Savage has described the need to confront the "historical residues" that drive inequalities along with the obligation to rethink our intellectual framework and the praxis that follows.

Acknowledging the injustices derived from wealth theft and legacies of institutionalized racism provides a fuller explanation of the circumstances of survivors and offenders. It points to new strategies to mitigate harmful behaviors, enhance healing, and contribute to social justice movements as ways to compensate communities for historic exploitation. "What are the main lessons that can be drawn from this new economic and social history?" Thomas Piketty asks. "The most obvious is no doubt the following: inequality is first of all a social, historical, and political construction." He continues, and notes that "we are all responsible for the way in which we choose or fail to take it into account in analyzing the world economic system, its injustices, and the need for change."

These obligations require attention to the restoration of well-being of victims and their communities similarly harmed by acts of violence. This process of restoration is not only "due" to survivors, but it may also help to strengthen the social fabric of community and thus enable efforts to enact transformative justice--including forms of reparations meant to mend and strengthen social groups most harmed by historical practices of exploitation. Nor are the arguments and recommendations in this essay fanciful. There are examples of reparation efforts that have been undertaken to address the consequences of colonialism and institutions of slavery. The discourse about the importance--indeed the necessity--of reparations has persisted.

RJ/TJ approaches may lead to a more profound political economic transformation. They address the historical circumstances that contribute to IPV in ways that are temporally expedient while establishing the foundation for protracted efforts. The philosophies and practices associated with RJ/TJ provide opportunities for individual accountability, healing, and constructive (re)integration within communities.

Reef C. Ivey Distinguished Professor of Law, University of North Carolina School of Law