The rule of intersectional construction: Making justice accessible
By Kirthi Jayakumar
Image: The Zalongo Memorial, a colossal stone sculpture of the dancing women by Georgios Zongolopoulos (1954). The memorial immortalizes the Souliote women who jumped off a cliff to their death rather than fall into the hands of the Ottoman soldiers under Ali Pasha.
Most legislative systems addressing gender-based violence aim to address a crime committed by one person against another. In enforcement, these laws are meant to be examined, applied, and interpreted to respond to the crime in ways that support the larger goals of justice in addition to supporting the unique challenge brought to fore by the case on hand. However, most legal systems world over speak to crimes in formulaic tones. When interpreted in very technical terms, the law can be less friendly to the one who most needs to benefit from it.
Flaws in the system
When drafted, the law aims at addressing “all people” within the territory for which it is passed / made. From criminal law to intellectual property law, the standards and thresholds are the same: codified to address the conduct of a national of the state (or, person regardless of nationality, in particular situations) in question. In principle, this serves the purpose of the rule of law – that everyone is equal before the law and no one is above the law. However, reducing an individual to a singular identity gives full play to structural and systemic violence, which places individuals at different starting lines and affects lived experiences by normalizing oppression. Within its geographic boundaries, diversity is fundamental to the fabric of every state’s society, as a variety of acquired and ascribed identities interact with systems and structures and navigate unique lived experiences.
The legislature makes the law, the executive implements it, and the judiciary interprets the law to align law-making and implementation with justice. In that, the judiciary has the toughest task. Imagine having to take a one-size-fits-all approach to make an impact on ground where those that are being brought under the law are each as different as chalk and cheese. The judiciary has evolved interesting tools of interpretation to create justice-oriented solutions by interpreting the law. For example, the rule of beneficial construction aims to interpret the law to support those for whom it was passed. The rule of harmonious construction aims to avoid repugnancy in the letter of the law, and so interprets provisions so that they do not cancel each other or produce absurdities on ground.
A possible theory of interpretation that can enhance the impact of the law, particularly in supporting survivors of gender-based violence, is what I’d like to call the intersectional construction of the law. Borrowing from Kimberle Crenshaw’s framework, this approach would really just deploy intersectionality to understand (a) the positionality of the person who has faced gender-based violence (b) the factors that complicate their gendered experience and (c) the systemic and structural failures that may prevent or affect their protection, safety, and access to justice adversely. As Crenshaw said, women are put on trial to see if “they are innocent victims asking for it.” Add caste, colour, race and class to the mix and the narrative gets tighter and more stifling for the victim if there are multiple instances of marginalization. Intersectionality will acknowledge, account for, and action these challenges.
In simple terms, intersectionality accounts for the coming together of multiple identity attributes to create individual, unique and specific experiences comprising privileges and oppressions that are experienced simultaneously. Not acknowledging intersectionality in plain legislative language is perhaps not difficult to understand. The sheer volume of specifics is difficult to write into words, much less even begin to comprehend given the width of the spectrum. However, this means that the onus falls on implementation, where the gaps can (and must be) plugged to make the law functional and to serve its ends, through judicial interpretation that centres intersectionality.
An intersectional construction of the law to address gender-based violence will centre the story of the survivor seeking justice, and understand their positionality with respect to society. Before applying the law and identifying whether particular criteria have been fulfilled in order for penal consequences to be applied, it will both acknowledge and assess systemic, structural, and cultural violence that may have enabled the commission of the crime, or complicated the impact of it, or both. Following that, it will apply the law to impose a penal consequence that both addresses the overt crime, while also speaking specifically to the factors that enabled it.
Applying an intersectional lens will help understand how women from disadvantaged backgrounds with histories of marginalization and oppression are doubly vulnerable. It will acknowledge and call for systemic barriers that prevent access to justice. It would also identify the ways in which the system can oppress a survivor through the process: investigation, evidence collection, and even cross-examinations in court. It would acknowledge the impact of these processes and find ways to centre the survivor’s comfort, peace of mind, and positionality, and enable the procedure to meet those challenges with empathy.
In the transitional justice paradigm, intersectionality can support the understanding of how sexual violence and rape are systematic tactics of war to target particular communities be it for ethnic cleansing and genocide or as part of a campaign of using war crimes to intimidate, terrorize, marginalize, and stigmatize whole communities.
In most judicial systems, a crime against a person is considered a crime against the state. This means that the public prosecutor takes up the case and prosecutes it as though it were committed against the state: striving to prove the offence to apply penal consequences alone. In countries that follow the adversarial system, the process following this stage is one where each side contests with the other to present their case in ways convince the judge in their favour. In the inquisitorial system, the survivor and witnesses are directly questioned by the system. An intersectional construction has the potential to encourage the law to transcend mere penal consequences for crime, and to understand how these existing systems are flawed because they don’t centre the needs of the person who is affected by the crime. It would enable the person seeking justice to define their needs from the law: for example, they would be free to ask for reparations, compensation, damages, property rights, residence rights, protection orders, restoration, and so on, based on their expectations from the system.
Rather than a formulaic application of a provision’s literal contents, intersectional construction will enable a cogent reworking of the social structure that normalizes factors that enable crime. Through intersectional construction, the law has a greater shot at being an instrument of sustainable social change. What we need is a subverted interpretation of Justitia, or Lady Justice: one that is no longer wearing a blindfold, but is instead, wide-eyed and discerning of the many intersections that have been ignored for far too long.