Beyond Carceral Expansion: Survivors’ Experiences of Using Specialised Courts for Violence Against Women in Ecuador
| Author | Silvana Tapia Tapia |
| Published date | 01 December 2021 |
| Date | 01 December 2021 |
| DOI | 10.1177/0964663920973747 |
| Subject Matter | Articles |
Article
Beyond Carceral Expansion:
Survivors’ Experiences of
Using Specialised Courts for
Violence Against Women in
Ecuador
Silvana Tapia Tapia
Universidad del Azuay, Ecuador
Abstract
This article presents empirical findings addressing the gap between specialised criminal
laws on violence against women (VAW) in Ecuador and women’s actual needs and
expectations when approaching the country’s specialised penal courts. Given its com-
prehensive legal system, Ecuador scores highly in protecting women from violence in
international rankings. However, based on quantitative data, qualitative case file analysis,
and in-depth interviews with survivors, judges, case-workers and judicial employees, this
study reveals that, in Ecuador, most lawsuits are dropped without ever reaching a reso-
lution. Because most survivors pursue protection from ongoing violence rather than a
conviction, and because advancing a lawsuit can be a source of various forms of stress and
fear, survivors usually withdraw from the trial once they are granted a protection order.
Nevertheless, this order is lost when complainants fail to appear in court. In addition,
police intervention is inadequate and seldom contributes to the effective protection of
women. The paper thus augments debates on ‘carceral feminism’, showing that VAW laws
are not necessarily bolstering the carceral apparatus on the ground. However, law does
mask the state’s disregard toward women’s lived experiences and their lack of access to
services that could ensure their protection and safety.
Keywords
Carceral feminism, criminal law, domestic violence, Ecuador, violence against women
Corresponding author:
Silvana Tapia Tapia, Facultad de Ciencias Jur´
ıdicas, Universidad del Azuay, Av. 24 de Mayo 7-77 y Hern´
an Malo,
010204 Cuenca, Ecuador.
Email: stapia@uazuay.edu.ec
Social & Legal Studies
ªThe Author(s) 2020
Article reuse guidelines:
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DOI: 10.1177/0964663920973747
journals.sagepub.com/home/sls
2021, Vol. 30(6) 848–868
Introduction
This article presents a study of women’s experiences of using Ecuador’s criminal courts
specialising in violence against women (VAW). The findings reveal a significant gap
between the state’s criminal law-centric responses to VAW, and survivors’ expectations
and needs when approaching the courts. Contemporary critiques, interrogating feminist
support of criminal law to address gender-based violence, have questioned the prospect
of carceral-expansion caused by feminist appeals to criminalisation, as these may (re)le-
gitimise the use of an oppressive penal apparatus. This paper, however, focuses on other,
empirically identified, shortcomings of criminal justice, such as the inadequacy of crim-
inal proceedings to protect violence survivors, the legal system’s disregard of women’s
needs and motivations, the lack of social services to assist them, and the ways in which
lawyers misrepresent survivors’ behaviour when they decide to withdraw from a crim-
inal trial. The article discusses the implications of these findings for feminist debates on
VAW and criminal justice, and presents some policy recommendations.
Feminist legal theory has long addressed the limitations of law in protecting and
rederessing women (Facio, 1996; MacKinnon, 1987; Smart, 1989). Criminal justice in
particular has been regarded as a mechanism that revolves around men and is created for
men, by men (Naffine, 2019). It has also been affirmed that penal systems selectively
prosecute (Carlton and Russell, 2018; Kapur, 2018; Sudbury, 2005a) and, as argued in
this paper, they selectively protect. Yet, appeals to criminalise VAW and harden punish-
ments for aggressors have become the backbone of many mainstream feminist projects
(Al Sharmani, 2013; Molyneux and Lazar, 2003). In response, a sector of feminist
scholarship has interrogated the role of feminism in contributing to bolster the state’s
punitive power. For instance, studies of ‘governance feminism’ have looked at the
influence of feminist actors who ‘walk the halls of power’ (Halley et al., 2018: ix), and
promote a carceral approach to gender-based and sexual violence (Bumiller, 2008;
Halley et al., 2006). Critiques of ‘carceral feminism’ have questioned feminist strategies
that demand increased policing, prosecution, and imprisonment as the primary solution
to VAW (Bernstein, 2012; Kim, 2018; Whalley and Hackett, 2017). The support of
punitive policies against sexual and gender-based violence, it is argued, potentially
contributes to mass incarceration (Law, 2014; Terwiel, 2020) and racialised social
control (Kapur, 2002; Sudbury, 2005b). These carceral turns, in feminism and beyond,
have analytically been connected to neoliberal reconfigurations of the global order
(Simon, 2007; Wacquant, 2009).
I have argued elsewh ere that, in Latin Amer ica, VAW laws continue t o be shaped, not
only by feminists, but also by actors who have deployed colonial narratives on the pre-
servation of the traditional family (Tapia Tapia, 2016, 2018, 2019). The present article
further nuances existing critiques of carceral feminism by showing that criminal proceed-
ings for VAW are not directly bolstering police surveillance or incarceration in Ecuador,
given the high attrition and low conviction rates therein. Instead, this article centres the
pitfalls of the judicial process as the pathwaythat women have to go down when they seek
for protection. Because a conviction isnot usually the goal of those who file a complaint,
most lawsuits are dropped, and incarceration is not a frequent outcome of the process.
There are, however,other problematic effectsof centring criminal justice,aside from penal
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Tapia
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