Abstract
In the late 1990s, Mexican feminists mobilized transnationally to demand state accountability for the feminicidios (feminicides) of women in Ciudad Juarez. Feminicidio refers to the misogynous killing of women and the state’s complicity in this violence by tolerating it with impunity. Drawing on debates of the Mexican Federal Congress (1997–2012) and interviews with feminist state and non-state actors, I examine feminist legislators’ response to transnational activism, which was to pass the “General Law on Women’s Access to a Life Free of Violence” and to create the penal-type code of feminicidio, which includes provisions to punish negligent state actors. These laws make the state a target of its own punitive power. To pass these acts, feminist legislators faced resistance from male legislators and the Federal Executive. I build on feminist institutionalism to theorize this resistance as gendered. Gendered state resistance was pervasive because feminist legislators practiced accountability by identifying the complicity of state institutions, including Congress, in perpetuating feminicidio. As part of the process, they built alliances with other female legislators and framed their arguments with notions of modern statehood. Although this framing strategy resulted in innovative legal change, I interrogate the assumption that modernity is the solution to feminicidio, because it can lead gendered state resistance to manifest as a simulation of accountability.
Keywords
Open any Mexican newspaper and it will likely feature an article on a young woman or girl’s murder and its defective investigation or prosecution. Yet the crime will not be characterized as a homicide, but as a feminicidio, the product of the widespread problem of gender violence and its impunity in the country. Femicide refers to “the misogynous killing of women by men” (Radford 1992, 3), whereas feminicidio (feminicide) focuses on the complicity of the state in this violence by tolerating it with impunity (Lagarde 2010; Monárrez 2013). Mexican feminist scholars coined this concept as they studied the murders of hundreds of women in Ciudad Juarez, a northern border city, and the state’s failure to prevent, effectively investigate, and punish these crimes, which fostered a climate of chronic repetition and hindered access to justice (Fregoso and Bejarano 2010). The transnational feminist mobilization that ensued linked this state failure to institutionalized sexist discrimination (Aikin Araluce 2011). For feminist scholars and activists alike, feminicidio constitutes a “state crime” (Lagarde 2010; Monárrez 2013), one for which the state should be held accountable.
In this article, I examine feminist federal legislators’ response to transnational feminist activists’ demands for state accountability. I define as feminist those legislators who, through their exercise of legal power, seek to challenge women’s subordination to men (see Ferree 2006). I focus on feminist legislators’ efforts to pass two laws. The first is the 2007 Ley General de Acceso de las Mujeres a una Vida Libre de Violencia (General Law on Women’s Access to a Life Free of Violence), which identifies violencia feminicida (feminicidal violence) as a violation of women’s human rights in the public and private sphere as linked to the state’s tolerance of cases of gender violence. 1 The second law is the 2012 reform to Article 325 of the Federal Criminal Code that codified feminicidio as a crime, defining it as the murder of a woman for “gender reasons,” and includes provisions to punish public servants when they hinder the administration of justice. 2 Feminicidio carries a maximum 60-year prison sentence. Public servants may be punished with a three- to eight-year prison term and the removal from their post. 3 In recognizing the state as a perpetrator of violence, these laws made the state itself a target of its own punitive power.
Drawing on debates of the bicameral Mexican Federal Congress (1997–2012) and interviews with feminist state and non-state actors, I show that feminist legislators did not pass these laws easily. They faced resistance from male legislators and the state’s executive branch. Building on feminist institutionalism, I theorize this resistance as gendered in order to understand both its pervasiveness and impact on feminists’ exercise of legal power. My conceptualization of resistance does not focus exclusively on the refusal to pass legislation and recognizes that resistance is not always overt. It captures how the “gender of governance” (Brush 2003) constrained feminists’ lawmaking, while recognizing that resistance is dynamic because it changes in response to feminist institutional gains. Gendered state resistance was ubiquitous because feminist legislators continuously identified and challenged the complicity of state institutions—including Congress—in perpetuating feminicidio, thus practicing accountability in and through the legislative process.
To succeed in turning the punitive power of the state against the state itself, feminist legislators built alliances with other female legislators and framed their arguments using notions of modern statehood to amplify transnational feminist activists’ pressure. This framing strategy resulted in innovative legal change (Towns 2010) and transformed the “gender of governance” (Brush 2003). Yet this framing opened the door for gendered state resistance to manifest as the simulation of accountability—a perverse gender politics that simulates institutional alignment with a feminist agenda, but undermines it through institutional practices.
Feminicidio, Transnational Feminist Activism, and The Mexican State
Though now recognized as a national problem, feminicidio in Mexico remains symbolically linked to the abductions and killings of women in the 1990s in Ciudad Juarez in the northern state of Chihuahua. The victims were often students from a low socioeconomic background, maquiladora workers, or sex workers (Monárrez 2013). The cultural association of women’s presence in the public sphere with moral corruption, coupled with the perceived low social status of those murdered, encouraged victim-blaming in the media and deflected attention from negligence in the crime investigations (García-Del Moral 2011; Wright 1999).
By the early years of the twenty-first century, impunity and sexist discrimination became central concerns for a powerful transnational advocacy network that developed to demand state accountability for feminicidio in Chihuahua (Aikin Araluce 2011; Staudt 2014). Among its key actors were the victims’ mothers and feminist/human rights activists, but also the Equity and Gender Commissions of the Chamber of Deputies and the Chamber of Senators, and a Special Commission created to address feminicidio (Aikin Araluce 2011, 259–61). These actors documented Mexico’s violations of its obligations under the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Belém Do Pará Convention) with numerous reports (Aikin Araluce 2011). Under the principle of due diligence, the Belém Do Pará Convention imposes positive obligations on states to take action to protect women from violence (García-Del Moral and Dersnah 2014; Rubio-Marín and Estrada-Tanck 2013). The transnational advocacy network used the reports to “name and shame” Mexico, undermining its status in the international community, and to pressure it into changing practices toward gender violence (Aikin Araluce 2011; García-Del Moral and Neumann 2019). As part of this process, activists turned feminicidio into a frame accusing the Mexican state of violating women’s human rights (García-Del Moral 2016).
The reports further bolstered litigation in the Inter-American Court of Human Rights. In 2009, the Court issued the judgment González and Others “Cotton Fiel”, v. Mexico concerning the sexual murder of three young women, whose mutilated bodies were found in a cotton field in Ciudad Juarez in November 2001, and the local authorities’ fabrication of evidence to solve these crimes. The Court found that through inaction, the Mexican state had violated these women’s rights and urged it to address feminicidio (García-Del Moral and Neumann 2019; Rubio-Marín and Estrada-Tanck 2013). Feminist legislators used the bicameral Equity and Gender Commissions and Special Feminicidio Commission to channel international pressure as leverage to pass the General Law on Women’s Access to a Life Free of Violence and codify feminicidio as a crime (García-Del Moral and Neumann 2019).
The literature on transnational feminist activism has examined the role of international pressure to change state practices toward gender violence as a prominent mobilization strategy. Transnational feminist activism has worked to get states to ratify treaties on women’s human rights, like the CEDAW and the Belém Do Pará Convention (Friedman 2009; Keck and Sikkink 1998), and to hold states accountable for the gaps between ratification and compliance (Htun and Weldon 2012; Merry 2003). Pressuring states—especially those aspiring to a “higher rank” in international society—works because states’ status as modern is increasingly wedded to their perceived adherence to the gender equality norms enshrined in these treaties (Merry 2003; Towns 2010). 4 Interestingly, according to Towns (2010, 11), “low rank” states may change their behavior toward women in innovative ways as they pursue modern status.
In short, international pressure facilitates states’ adopting norms on women’s rights through their institutionalization in legislation and policies on gender violence (Ferree 2006; Htun and Weldon 2012). Ongoing pressure from “below” strengthens the impact of international pressure from “above,” because it results in a “pincer effect” (Friedman 2009). Applying pressure as a pincer is necessary because “institutionalization is not automatic” (Friedman 2009, 251), and states may not always adopt what Htun and Weldon (2012) call “progressive” legislation or policies to address gender violence. States may initially pass legislation that appears to comply with gender equality norms yet re-inscribe gender inequality (Friedman 2009). States’ responses to activists’ pressure do not take place in a vacuum. National gender regimes matter in shaping the outcome of activists’ mobilization strategies (Ferree 2006; Friedman 2009). States with conservative gender regimes may prove more resilient to international pressure especially if they do not view international human rights institutions as legitimate, do not seek to improve their rank in international society, and lack a strong women’s policy machinery (García-Del Moral and Neumann 2019). Moreover, the pervasiveness of structural inequality, systemic corruption, and a climate of impunity or an overall lack of state capacity may hamper the enforcement of progressive legislation and policies (Menjívar and Walsh 2016; Staudt 2014).
Previous literature illustrates that states respond to international pressure to address gender violence when feminist activists threaten their status as modern, although ongoing domestic feminist mobilization and states’ gender regime and capacity also matter. States resist addressing gender violence and being held accountable when they fail to do so. Yet, how state resistance is gendered, how it operates within state institutions, and how it is transformed by feminist challenges remains underexplored. In this article, I address this gap by theorizing state resistance as gendered and analyzing its impact on feminist legislators’ efforts to practice accountability by making the state the target of its own punitive power.
Theorizing Gendered State Resistance
For Staudt (2014, 180), “the tragic irony of persistent [feminicide] is that the success of targeted human rights activism depends primarily on the long-term project of reforming and transforming near-incorrigible masculinist institutions.” Staudt’s (2014, 166) argument refers to Mexican law enforcement institutions’ resistance to changing their practices, whereby “resistance is the product not only of bureaucratic lethargy, but also personalized identification with, and backlash against, change within institutions founded with masculinist privileges and sustained masculinist values.” Following Staudt, I draw on feminist institutionalism to theorize state resistance as constitutive of and constituted by the “gender of governance” (Brush 2003).
According to Brush (2003, 19–20), the gender of governance captures “the variable degree to which assumptions about masculinity and femininity, male privilege and female penalty, structure the logic of . . . and organize the institutions and practices of states and social policies.” The gender of governance hence reveals “state power as a gendered hierarchy” (Brush 2003, 19). Conceptualized in terms of the gender of governance, resistance can be considered part and parcel of the gendered practices sustaining the relations of power underlying states’ gender regimes (Connell 1990). This understanding of gendered resistance identifies the impact of gender on the exercise of control, authority, and force, and consequently, on organizational hierarchies and legal power (Connell 1990). It further brings to bear how power relations become reconfigured as feminists within state institutions challenge and transform them. Yet resistance may exhibit different gendered dynamics within specific state institutions, because the state is neither a monolith nor do its various actors, institutions, organizations, and branches act in a coordinated manner (Brown 1992; Connell 1990; Santos 2004).
Much of the scholarship on gender violence in Latin America has examined resistance within law enforcement institutions. Menjívar and Walsh’s (2016, 2017) work on feminicide in Central America shows that resistance to enforce gender violence laws takes place through the deliberate use of competing laws that authorize gender discrimination. Even women-only police stations may exercise practices that put women at risk of further violence, contradicting the mandates of gender violence laws and policies (Neumann 2017; Santos 2004). Furthermore, a lack of state capacity affects women in gendered ways, preventing them from accessing justice (Lazarus-Black 2003; Menjívar and Walsh 2016; Neumann 2017). Long case-processing times due to overburdened and underfunded courts frequently dissuade women from pursuing their cases, functioning as “structural deflection” to erode women’s substantive equality (Lazarus-Black 2003, 999). Gendered resistance in these institutions amounts to institutional violence.
I add to this literature by analyzing how resistance to address feminicidio operated within the Mexican Federal Congress as a gendered institution (Bolzendahl 2014; De Barbieri 2003; Lovenduski 2005). References to overt resistance on the part of conservative, mostly male, lawmakers to the introduction of legislation on gender violence are frequent in the literature on feminicide in Latin America. Male legislators have threatened to leave Congress to sabotage a law’s passage and they have argued that such laws discriminate against men or undermine the family (García-Del Moral and Neumann 2019, 472; Menjívar and Walsh 2016, 41). Such resistance is not necessarily surprising. Male legislators have opposed, sometimes violently, women’s exercise of political power (Krook and Restrepo Sanín 2016; Lovenduski 2005). Resistance in the Mexican Congress to legislation about gender violence and feminicidio, however, was also of a different kind.
My analysis shows that resistance reproduced the organizational gendered hierarchies of Congress (Bolzendahl 2014; Heath, Schwindt-Bayer, and Taylor-Robinson 2005; Htun, Lacalle, and Micozzi 2013). Bicameralism also shaped gendered resistance. Senators did not always approve bills passed by Deputies. And resistance manifested in subtler ways that replicated a masculinist logic embedded in legal definitions of state responsibility or reflected a perverse politics toward feminicidio. These findings echo Piscopo’s (2011) analysis of the passage of the General Law on Women’s Access to a Life Free of Violence. Piscopo (2011, 216) found that male legislators would publicly endorse the law, while opposing it in indirect ways. Female legislators characterized this “indirect” resistance as “strong,” claiming that male legislators recognized the law as a threat to their own male privilege (Piscopo 2011, 215). However, I go beyond Piscopo by identifying gendered state resistance not only to feminist laws but to feminist efforts to practice accountability for feminicidio in and through the legislative process.
Here I draw on Ahmed’s (2012, 26; emphasis in the original) observation that institutions can be experienced “as resistance.” Ahmed (2012) analyzed the institutionalization of diversity in British and Australian universities as a result of a “new equality regime,” namely, the imposition of positive duties to comply with new legislation on discrimination. Although these positive duties changed diversity practitioners’ relationship to their institutions, a lack of institutional will often hindered the actual institutionalization of diversity. For Ahmed (2012, 8; emphasis in the original), “an equality regime can be an inequality regime given new form, a set of processes that maintain what is supposedly being redressed.” I show that similar dynamics were at play in Congress. Through alliances, feminist legislators achieved the institutional recognition of state responsibility of feminicidio. Framing their arguments in the language of modern statehood, they succeeded in turning the power of the state against the state itself through innovative legislation. The gender of governance became simultaneously reconfigured, resulting in new dynamics of gendered state resistance: the simulation of accountability.
Methods
My analysis draws on the transcribed or stenographic versions of sessions of the Federal Congress debating the murders of women in Ciudad Juarez, the General Law on Women’s Access to a Life Free of Violence, and the codification of feminicidio (http://www.congreso.gob.mx/). I focused on five legislative periods: LVII (1997–2000), LVIII (2000–2003), LIX (2003–2006), LX (2006–2009), and LXI (2009–2012). I chose this time frame because feminist activists first approached Deputies about gender violence in Ciudad Juarez in 1997, while feminicidio was criminalized in June 2012. I gathered a total of 142 debates: 90 in the Chamber of Deputies (CD), or the House, and 52 in the Chamber of Senators (CS). The relevant sessions and dates are listed in Appendix 1; along with the relevant chamber (CD or CS), the dates in the text below are expressed as day.month.year. I coded all debates for date and legislative period; chamber; and legislators’ background information, including their gender, involvement in women’s organizations and feminist civil society, party affiliation, and membership and role in parliamentary commissions. I also compiled information on the gender composition of each commission and their leadership through the System of Legislative Information of the Secretary of Interior (http://www.sil.gobernacion.gob.mx/portal). This exercise allowed me to map the legislature’s gendered organization.
In a first round of coding using Nvivo, I read all the debates, paying attention to how the murders of women in Ciudad Juarez were framed, and by whom, and the bills that were proposed to address them, while being attentive to the impact of international pressure. I found that it was mainly feminist legislators who gave gendered discursive significance to the failure of state institutions and actors, federally and locally, to respond to this violence. Taking into consideration my previous work on the construction of feminicidio as a frame in the context of transnational activism (García-Del Moral 2016), in a second round of coding I focused on how feminists understood the state responsibility for feminicidio. I paid attention to how they mobilized narratives of modern statehood to legitimate their legislative goal of criminalizing feminicidio and passing the General Law on Women’s Access to a Life Free of Violence. Through analysis of feminist legislators’ discursive efforts to achieve these outcomes, I further identified how emotion work accompanied their claims that Congress itself was complicit in feminicidal violence and impunity, suggesting that they were trying to practice accountability in and through the legislative process itself. In turn, I identified the dynamics of gendered state resistance in which feminist legislators’ actions were embedded.
Additionally, my analysis incorporates data from semistructured interviews with feminist activists (n = 15) and former or current state actors (n = 6) conducted during three field visits to Mexico in 2013, 2014, and 2017. These interviews inform my interpretation of the debates by providing me with information on the “behind the scenes” processes that are not readily discernible from the debates, such as the role of alliance building.
Legislating Toward Accountability and A Modern State
April 30, 2012, marked a momentous occasion: With 307 votes in favor, none against, and four abstentions, the House passed the reforms to the General Law on Women’s Access to a Life Free of Violence and the Federal Criminal Code that codified feminicidio as a crime. 5 Deputies first voted to send the bill proposing the reforms to the Senate on December 13, 2011, with 279 votes in favor and none against. 6 Senators approved it on April 19, 2012, with 77 votes in favor and one abstention. 7 Although these outcomes represented a bicameral feminist legislative victory, the near-unanimous support for these reforms masks the pervasiveness of gendered resistance to feminists’ ongoing efforts to hold the state accountable for feminicidio in response to transnational feminist activism. Below, I analyze the dynamics of gendered state resistance and feminist legislators’ strategies to practice accountability by passing laws that make the state a target of its own punitive power.
The Gendered Congress
In accordance with the United Nations Beijing Platform for Action (1995), quotas were introduced to increase women’s presence in Congress (De Barbieri 2003; Heath, Schwindt-Bayer, and Taylor-Robinson 2005; Htun, Lacalle, and Micozzi 2013). This process coincided with Mexico’s democratization: In 2000, the right-leaning National Action Party ended the 72-year rule of the Institutional Revolutionary Party through the electoral triumph of Vicente Fox (2000–2006) and, subsequently, Felipe Calderón (2006–2012). The attendant political diversification benefited feminists. Although the center-leaning Institutional Revolutionary Party and the left-leaning Democratic Revolution Party had a historical feminist presence, feminists found opportunities in new parties. Because of the National Action Party’s anti-abortion stance, feminists have not usually been affiliated with it, although female affiliates have supported feminist agendas against gender violence (Piscopo 2011).
Despite their increased presence in Congress, women and feminists occupied few leadership positions. The House has 500 seats and around 42–44 ordinary commissions. The Senate has 128 seats, with about 48–60 ordinary commissions in the examined periods. The number of special commissions varies by legislative period and Chamber. Ordinary commissions are permanent bodies that have the power to introduce, evaluate, and review (dictaminar) bills, whereas special commissions lack those powers and must be reinstituted when a period begins. Ordinary commissions have up to 30 members in the House and up to 15 in the Senate. Membership in special commissions in either Chamber varies by topic, but they are much smaller.
On average, women constituted only 23 percent of Deputies and 20 percent of Senators between 1997 and 2012. As Deputies or Senators, women tended to be overrepresented in ordinary commissions dealing with gender, vulnerable groups and indigenous peoples, culture, education, and youth—namely, those that reflect “women’s interests.” These are marginal commissions with fewer resources compared with commissions associated with masculinity or perceived as gender neutral (Bolzendahl 2014, 855; Heath, Schwindt-Bayer, and Taylor-Robinson 2005). Women did not tend to hold the presidency of any commissions, even when overrepresented, except for the Equity and Gender Commission in each Chamber. Similarly, female Deputies were the majority in and held the presidency of the Special Commission to investigate the murders of women in Ciudad Juarez, created in November 2001 after the “cotton field” murders. It later became the Special Commission to investigate feminicidios across Mexico under the presidency of Dr. Marcela Lagarde, a feminist anthropologist, activist, and Democratic Revolution Party Deputy (2003–2006). While dominated and presided over by women, its Senate counterpart was instituted inconsistently and never became national in scope.
Though a product of this gendered structure, the Equity and Gender Commissions operated as a platform for feminist lawmaking. Their mandate to mainstream a gender perspective, a commitment to introducing the doctrine of gender equality into the existing statutes (Piscopo 2011, 168), provided feminist legislators with an important institutional opportunity to challenge gendered state resistance to accountability for feminicidio. Feminist legislators first acted through these commissions to problematize prevalent masculinist definitions of state responsibility for gender violence. Given their initial lack of success, feminists later used these commissions to draft and pass legislation that would turn the state’s punitive power against the state itself.
The distinction between federal crimes (crímenes del fuero federal) and common law crimes (crímenes del fuero común) is a gendered jurisdictional divide. It captures a masculinist definition of state responsibility for gender violence premised on gendered notions of the public and the private. Enshrined in the Federal Criminal Code, federal crimes refer to those acts that affect the federation and the public good, such as drugs or arms trafficking. Common law crimes affect private goods and fall under the jurisdiction of individual states. The gendered jurisdictional divide constituted a difficult obstacle for feminist legislators, especially in earlier legislative periods, LVIII (2000–2003) and LIX (2003–2006), because male legislators and the Attorney General mobilized it to resist feminist activists and legislators’ calls for federal intervention to address the murders of women in Ciudad Juarez. The gendered jurisdictional divide reflects the gender of governance and its impact on the exercise of legal power (Brush 2003).
In the aftermath of the “cotton field” murders, feminist legislators in the Equity and Gender Commissions challenged the gendered jurisdictional divide by drafting bills that framed these crimes as issues of “public transcendence” or “public safety,” and as a violation of CEDAW and the Belém Do Pará Convention (CD 07.03.03; CS 18.03.03). Their aim was to compel the Office of the Attorney General to take over the murder investigations from negligent local authorities. Yet these initiatives were unsuccessful, notwithstanding Senator Martha Tamayo’s (Institutional Revolutionary Party) argument that jurisdictional divides were arbitrary given “the existence of international tribunals that stand over and above states’ jurisdictional sovereignty” (CS 18.03.03). The Commissions on Justice and Legislative Studies of the Senate, headed by and mostly composed of men, rejected feminist legislators’ arguments that the systematic murder of women in Ciudad Juarez were acts that harmed the federation (CS 20.03.03). Likewise, the Attorney General argued that without proof of these murders’ link to organized crime, they could not be considered federal offences or a public safety concern (CS 19.12.02; CS 08.04.03). The gendered organization of Congress in concert with the gendered jurisdictional divide supported men’s resistance to feminist legislators’ goal to use legal power to push the Mexican state to take action against the killings of women in Ciudad Juarez.
“We Cannot Remain at the Margins”: Practicing Accountability, Targeting the State
Feminist legislators were convinced that “remaining at the margins of such serious crimes” as the “cotton field” murders was not an option for them or for Congress as “the maximum organ of popular representation” (CD 08.11.01). As Deputies Flor Añorve and Hortencia Enríquez (Institutional Revolutionary Party) claimed, failing to act “would make impunity, negligence, and irresponsibility the defining characteristics of the powers of the State” (CD 08.11.01). Deputy Hortensia Aragón (Democratic Revolution Party) echoed this view, arguing that legislators “could not exclude themselves from the irrevocable responsibility that the three powers of the state have to guarantee the life, integrity, and safety of all Mexicans” (CD 08.11.01). To not “remain at the margins,” feminist legislators pursued building alliances with other female lawmakers and mobilized narratives of modern statehood to successfully create legal mechanisms that targeted the complicity of the state in gender violence through its inaction. These legal mechanisms were the General Law on Women’s Access to a Life Free of Violence and the creation of feminicidio as a penal type; the legislative process to secure their passage thus became a means for feminist legislators to practice accountability.
Alliance-building: “Walking” and “feeling” together
During our interview in May 2017, Martha Tagle, a self-identified feminist and Deputy (Citizen Movement, 2006–2009 and 2018–2021) and Senator (independent, 2015–2018), told me that building alliances with other female Deputies and Senators was a crucial strategy to pass the General Law on Women’s Access to a Life Free of Violence. “Walking together” (Piscopo 2011) and what I propose be understood as “feeling together” were tactics for alliance building. According to Piscopo (2011, 167–74), “walking together” (caminar juntas) facilitates cross-party solidarity among women by sidelining issues such as abortion and the Catholic Church. Though not all women in Congress are feminists, “walking together” secures support for feminist lawmaking, especially when it comes to violence against women (Piscopo 2011, 248).
Tagle echoed this tactic when she emphasized the importance of a “plural group of women” working within and outside the House’s Equity and Gender Commission: Violence against women unites us, nos hermana (it makes us sisters), making us go forward in the legislative realm. It does not matter to which party they belong, women from [any party] get hit, get killed, right? When the General Law on Women’s Access to a Life Free of Violence was drafted and reviewed, there were feminist scholar Marcela Lagarde, women who have been feminist activists their whole lives, and female politicians from different parties. This plural group made it possible to push for the law, since the Special Commission on Feminicidio could not legislate. Otherwise, it would not have been on a political party’s agenda. Neither a party nor a single female Deputy would have pushed for such a law.
Tagle’s words illustrate the political salience of “walking together,” given the legislature’s gendered organization and resistance to the Equity and Gender Commissions’ previous challenges to the gendered jurisdictional divide. I suggest that “feeling together” contributes to the sense of sorority underlying “walking together.”
I define “feeling together” as feminist emotion work to legitimate the importance of state action against feminicidio. Here I follow Whittier (2018, 132–36), for whom “ritualized invocations of emotion” among legislators operate as “glue” to cement alliances among diverse actors and legitimate the construction of specific understandings of social problems, such as violence against children, that can cross ideologies. Yet, in light of Mexican male legislators’ indifference and resistance to respond to feminicidio, “feeling together” arguably served to create a common ground primarily with female legislators to “walk together.” Feminist legislators’ outrage at male legislators’ disregard for women’s lives and the violent ways in which they are killed characterized their expressions of “feeling together,” as exemplified by Senator Dulce María Sauri’s (Institutional Revolutionary Party) scathing critique of male legislators’ reliance on the gendered jurisdictional divide to justify federal inaction: These women not only suffered the tragedy of being murdered, their bodies mutilated and discarded in the desert, but were killed with knives as opposed to a caliber 45 gun or a weapon that, according to the Attorney General, would allow it to exercise its jurisdiction. What irony! (CS 04.05.03; emphasis added)
Likewise, Senator Tamayo (Institutional Revolutionary Party) decried: “How many more women must die for this issue to become part of the federal agenda? Do we have to wait for international institutions to dictate another recommendation or resolution that will point to our criminal omission?” (CS 20.03.03). Through “feeling together,” feminist legislators also instigated backlash against President Fox in 2005 for characterizing the media coverage of a new wave of feminicidios in Ciudad Juarez as refriteado (rehashed), though they concerned the sexual murders of seven-year old Airis Estrella Pando and ten-year old Anahí Orozco. Outraged, Deputy Diva Gástelum (Institutional Revolutionary Party) exclaimed: “If women are brutally murdered every day, what constitutes a ‘rehash’? How is it possible that car theft or drug trafficking become federal matters, but not feminicidio, which is a crime against humanity and has tainted Mexico internationally?” (CS 01.06.05; emphasis added).
“Feeling together” worked in tandem with “walking together” to build alliances, as feminist legislators used emotion work to foster a sense of shared outrage among women in the legislature, given the resistance to address feminicidio by male legislators and the Federal Executive. Expressions of “feeling together” also became vehicles for narratives of modern statehood through which feminist legislators framed state inaction, and thus state complicity in feminicidio, as something both criminal and shameful, as illustrated in the quotations by Senator Tamayo and Deputy Gástelum.
Framing Modern Statehood
In the context of Mexico’s transnational shaming, feminist legislators strategically invoked the notion that responsibility for securing women’s rights is the hallmark of the modern state. Notions of modern statehood were important to feminist legislators because they evoked a strong rule of law and strong institutions willing and able to end violence against women and the climate of impunity, as the above statements by Deputies Añorve, Enríquez, and Aragón about not remaining “at the margins” of feminicidio illustrate. During our interview, Martha Tagle supported this interpretation: I think that Mexico has a very big problem; I don’t think that this issue of the rule of law is as complicated in other countries. The United States, for example, has a very strong rule of law. There, citizens believe and follow the law, whether they like it or not. Here, we have a very weak rule of law, and that’s one of the main problems.
Although the frame of modern statehood positions Mexico as backward vis-à-vis the West, for Tagle, as for other feminists, the rule of law represents the antithesis to impunity. Feminist legislators used this frame to counter masculinist definitions of state responsibility and to integrate language that identified the state as a perpetrator of gender violence in their proposed laws. They thus paved the way for turning the punitive power of the state against the state itself to hold it accountable for feminicidio as a problem beyond Chihuahua, albeit with partial success.
State accountability was precisely the aim pursued by feminist deputies belonging to the Equity and Gender Commission, such as Diva Gastélum, its president, and Rebeca Godínez (Institutional Revolutionary Party), Eliana García, and Angélica de la Peña (Democratic Revolution Party). Alongside Marcela Lagarde, the President of the Special Commission on Feminicidio, between 2004 and 2006 they drafted three bills to create the penal type feminicidio and the General Law on Women’s Access to a Life Free of Violence (CD 07.12.04; CD 02.02.06; CD 26.04.06).
To counter masculinist definitions of state responsibility rooted in the gendered jurisdictional divide, Lagarde first framed feminicidio as a national problem, claiming that it constituted “misogynous genocide against women” resulting from the state’s “failure to provide women with guarantees or with conditions of safety” and hence a “state crime” (CS 25.11.03). This framing of feminicidio ultimately constructs the state’s failure to guarantee women’s right to a life free of violence as its failure to be the modern. The exposition of motives of the General Law on Women’s Access to a Life Free of Violence’s exemplifies this: “No State that considers itself democratic should ignore that violence against women is a clear sign of a lack of civility and development of a country” (CD 14.12.05; CD 02.02.06; emphasis added). Consequently, Lagarde posited the criminalization of feminicidio as a stepping stone toward a modern Mexican state governed not by impunity, but by the rule of law: “It would send the message that the Mexican state does not tolerate impunity,” making it possible “to punish the state itself for transgressing women’s rights” (CD 07.12.04).
Indeed, despite the different legal definitions of feminicidio in the three initial bills to codify it as a crime, all included provisions to punish negligent public servants. Two evoked the language of genocide as the intentional destruction of women as a group (CD 07.12.04; CD 26.04.06). The House reviewed and approved them on April 26, 2006, with 311 votes in favor and one abstention. 8 Senators, however, never discussed them, and they did not become law. The other bill characterized feminicidio as misogynous violence and was included in the initial draft of the General Law on Women’s Access to a Life Free of Violence, though it was later removed (CD 14.12.05). Deputies reviewed and approved the revised draft with 314 in favor and one vote against on that same day, while Senators approved it with 106 votes in favor and one against on December 19, 2006. 9 The law entered into force on February 2007.
Simulation: The Institution as Resistance
Feminist legislators were able to leave “the margins” of legislative action and practice accountability by building alliances and using frames of modern statehood. This resulted in their first victory, securing the institutional recognition of feminicidio. However, it took them five more years to create the penal code for feminicidio, despite the Cotton Field judgment issued by the Inter-American Court issued in 2009 and President Calderón’s commitment to human rights with sweeping constitutional reform in 2011. Gendered state resistance thus prevailed from 2006 through 2012, transforming the gender of governance in response to feminists’ victory. In turn, gendered state resistance became reconfigured, manifesting in feminist legislators’ experience of the institution “as resistance” (Ahmed 2012), which is a form of simulating change.
I define simulation not as the co-optation of feminist agendas, but rather as a perverse gender politics that takes the form of simulated political/institutional alignment with feminism without actual change in practice. For example, the General Law on Women’s Access to a Life Free of Violence and the near-unanimous approval of the two proposals to codify feminicidio as a genocidal crime in the House seemed to institutionalize feminists’ legislative agenda and legitimate feminist definitions of state responsibility for gender violence. Institutional action even accompanied this victory: The General Law on Women’s Access to a Life Free of Violence came with budgetary resources to support federal government agencies to implement various actions, including programs to tackle the different expressions of gender violence identified in the law and mandating gender sensibility training for public officials (Tagle, interview). Martha Tagle told me that it led some male legislators and politicians to declare themselves “committed” to gender equality. Yet for Tagle these actions and commitment often amount to simulation: We know that in the public sphere there are many men that are violent [in their personal lives], and nobody says anything, though they’re some of the most important decision-makers. When you hear them speak, they seem so committed [to feminism]. But if they don’t change in their personal lives, then they end up simulating, the same way that there’s simulated actions when it comes to [the General Law on Women’s Access to a Life Free of Violence]. I mean, there’s simulation because these actions aren’t working.
Tagle’s reflection on simulation captures the confluence of “private” and “public” patriarchy as part of the reconfigured gender of governance. Although individual male politicians and state institutions, including the legislature, may seem aligned with feminist agendas, the outcome of their actions, or even their actions themselves, do not reflect this. Indeed, in addition to the ongoing refusal to criminalize feminicidio within the legislature, there was widespread governmental denial of the prevalence of feminicidal violence. According to Tagle, “nobody [the federal and state governments] wants to recognize that women are killed due to violencia feminicida because that’s a sign of machismo” and hence proof that “they’re performing badly.” Put differently, admitting these crimes exist is proof of their failure to be modern.
In this sense, for Deputy Aida Arvizu (Social Democratic and Peasant Alternative Party) the yearly congressional sessions to commemorate International Women’s Day were “a bureaucratic festivity that is ‘feminist for show’ but does not contribute to securing women’s rights” (CD 10.03.08). Arvizu’s remarks responded to the refusal of Congress to criminalize feminicidio, despite the marked increase in the killing of women after President Calderón launched the war on drugs (Staudt 2014). Though Arvizu invoked notions of modern statehood, arguing that gender violence constituted “the most flagrant indicator of social, cultural, and democratic atavism” (CD 10.03.08) and that criminalizing feminicidio would “renew Mexico’s criminal justice system to make it worthy of a true democratic state” (CD 09.12.08), she was not successful in passing her own bill to this aim.
Deputy Holly Matus (Democratic Revolution Party) framed this refusal as “state and institutional violence” that rendered Congress complicit in perpetuating impunity (CD 25.11.08). Deputy Teresa Guadalupe Reyes (Workers’ Party) echoed this view, claiming that Congress exercised a “double morality” by resisting the criminalization of feminicidio while “creating laws that violate women’s human rights and criminalize their [reproductive] choices” (CD 25.11.09). Aggravating the sense of simulation of support was that President Calderón appointed Arturo Chávez Chávez as Attorney General, although the National Human Rights Commission and feminist activists had accused him of negligence during his tenure as Chihuahua State Prosecutor in the late 1990s. Going against her party, Deputy Laura Elena Estrada (National Action Party) characterized this appointment as a “feminicidal action against all women in the country” (CD 13.12.11).
In this context of simulated alignment with feminist agendas and simultaneous state denial of feminicidio, “walking together” and “feeling together” became all the more important for feminist legislators to generate support for the last three proposals to codify feminicidio in 2011. Combined into one bill, these were introduced by feminists Diva Gastélum (Institutional Revolutionary Party), the President of the Special Commission on Feminicidio Dr. Teresa Incháustegui (Democratic Revolution Party), and Laura Elena Estrada (National Action Party). 10 Against the background of the Cotton Field judgment, which Deputy Dolores Názares (Democratic Revolution Party) characterized as “a wound that is kept fresh by every single murder of women and girls in the country” (CD 13.12.11), “walking together” and “feeling together” underscored the human cost of state inaction, or simulated action. “Turning feminicidio into a specific crime is both necessary and correct, but shouldn’t we also recognize that this is the product of the thousands of women who were killed with such cruelty that their murders could be classified as hate crimes?” asked Estrada as she urged her colleagues to approve the bill (CD 13.12.11). Deputy Carolina Viggiano Austria (Institutional Revolutionary Party) agreed: “Why should we approve it? Because it seeks to guarantee women’s access to justice …, because the Mexican state will comply with its international obligations …, but more importantly, because since 2007 there have been at least 2015 murders of women and girls in the country” (CD 13.12.11). For Incháustegui, criminalizing feminicidio would ultimately serve to “end the indifferent and irresponsible attitude of public servants, who are never held accountable for [their negligence] in investigating [violence against women], fostering a climate where women can continue to be killed with impunity” (CD 08.03.11).
To summarize, constrained though they were in their exercise of legal power by the gender of governance, feminist legislators responded to the demands of transnational feminist activism by pursuing the legislative goals of guaranteeing women’s right to a life free of violence and creating the penal type of feminicidio. They further recognized the need to construct feminicidio as a national problem sustained through the complicity of Mexican state actors and institutions, including Congress. Feminist legislators’ ongoing reliance on the language of modern statehood revealed their very valid concerns with systemic impunity and hence a desire to strengthen the rule of law through punitive measures that would target the state itself, providing women with mechanisms to access justice. Innovative as these legal outcomes were, the question remains as to whether they constitute a manifestation of simulated accountability.
Modernity and The Simulation of Accountability
Can and will the state act, not only against perpetrators of feminicidio, but against state actors who, whether through omission or commission, sustain violencia feminicida? Feminist scholars may have diverging answers, depending on how they view the role of the state in addressing gender violence.
For critics of carceral/governance feminism, turning to the state’s punitive power as a response to gender violence is bound to fail and compromise transformative feminist action, further providing a foil for conservative and neoliberal agendas that affect the most marginalized (Bernstein 2012; Bumiller 2008; Halley et al. 2018). For social movement scholars, feminist activists’ and legislators’ pursuit of legal responses may not necessarily amount to their “uncritical embrace of the carceral state,” but rather constitutes an effort to “reform the state’s structural and discursive power” (Whittier 2018, 207). These scholars are also not likely be surprised by the limitations of the resulting laws. Legal outcomes are the product of a multiplicity of factors (Whittier 2018). Lawmaking takes place in a context in which various forms of structural, political, and symbolic violence intersect (Menjívar and Walsh 2016, 2017). Moreover, the state cannot be avoided when it comes to acts already defined as crime: “control of crime is a central aspect of the modern state and the rule of law” (Whittier 2018, 18).
I suggest, however, that answering this question requires deeper interrogation as to whether it is the very narrative of the modern state that may facilitate the simulation of accountability. Modernity as the “aspired status” of “low-rank” states in the international community, or of states that were “named and shamed” like Mexico, may well bring about innovative legal or policy change (Towns 2010). Nevertheless, in imagining that criminalization brings the Mexican state closer to a true modern state, feminist legislators not only reproduce the problematic idea that Mexico is “backwards” vis-à-vis the West, they paradoxically ignore the modern state’s gendered, racialized, and classed structure and origins (Brown 1992; Connell 1990). This is paradoxical because feminist legislative arguments are all based on challenging the masculinist logic of law. As Kogacioglu (2004, 121) argues, when institutions are able to claim modernity as their defining feature, their practices can remain “unscrutinized,” allowing institutional actors “to eschew responsibility for their own complicity” in gender violence. Modern statehood should not, therefore, be posited as the solution to feminicidio. In a context of widespread impunity, notions of modern statehood may not actually undo but rather foster the reconfiguration of gendered state resistance as the simulation of accountability. This is disconcerting: The simulation of accountability protects both the state and the perpetrators of feminicidio.
Such a conundrum reflects what Ahmed (2012, 11; emphasis in the original) identifies as “the difficulty of equality as a politics: of how in legislating for equality (and against inequality), it can be assumed that equality is achieved in the act.” The feminist state and non-state actors I interviewed were caught in this conundrum. As Hortensia Vásquez, a feminist activist and Tagle’s former aide, said, “What we have is a system that organizes itself to not change, no? If the system always organizes itself to survive, then we have the problem of a system that changes in order not to change, it changes to sustain itself as it is.” Expressing a related point, Ely Plácido from the Latin American and Caribbean Committee for the Defense of Women’s Rights (CLADEM) argued: “I think that what hasn’t been tackled is [the existence of] ‘too much institutionality’ (demasiada institucionalidad), all the institutions that seem to be stronger but are not working and have very little effect on curbing gender violence.” These comments point to the difficulty of accountability as a politics and the attendant “substitution of policy for action” (Ahmed 2012, 11)—that is, accountability as simulation.
Notwithstanding their suspicion of law’s inability to transform “the system,” these feminist activists were aware of its power for demanding action: “If it’s not in the law, it doesn’t exist. If it is, it exists, and it creates obligations,” claimed Plácido. That said, she identified systemic corruption and structural inequalities as one of the main, if not the most important, problem behind the simulation of accountability. She told me that “any system, be it the most punitive or the least, won’t work with the levels of corruption and impunity that we have here. Things won’t change.” Plácido’s analysis suggests that tackling corruption and structural inequalities, as opposed to yearning for modern statehood, is (part of) the solution for combating feminicidio, holding the state accountable, and strengthening the rule of law.
Conclusion
The passage of the General Law on Women’s Access to a Life Free of Violence and the Reform of Article 325 of the Federal Criminal Code reflects feminist federal legislators’ response to the demands for state accountability of transnational feminist activism against the killing of women in Ciudad Juarez. They further represent their success in achieving the institutional recognition of feminicidio as a national problem for which the state should be accountable. In problematizing the notions of modern statehood that feminist lawmakers mobilized to secure their approval in Congress, I do not mean to argue that these legal mechanisms are not important tools for combating violencia feminicida or holding the state accountable. On the contrary, I recognize their innovative, even radical, character in that they turn the state’s punitive powers against the state itself. It is for this reason that I also recognize the fragility of feminist legislators’ gains.
As I write, more than 100,000 women marched in Mexico City alone on International Women’s Day 2020. They were demanding state accountability for the brutal feminicidios of 25-year-old Ingrid Escamilla and 7-year-old Fátima Aldriguett in early February, and for the 10 women and girls murdered daily. But women also marched to voice their anger at Alejandro Gertz Manero, the Federal Prosecutor (formerly Attorney General), for proposing to eliminate the penal type of feminicidio because it is “too hard to prove and prosecute.” Feminist legislators vowed to reject this proposal. The proposed change may not happen because of the strong feminist backlash against his proposal. Now, Gertz Manero claimed that removing feminicidio from the Federal Criminal Code had never been his intention. What his actions indicate, nonetheless, is that gendered state resistance is still a problem that feminists within and outside of state institutions have to face. The response of feminist legislators and activists alike also suggests that state accountability for gender violence and feminicidio is an ongoing, contested process. As they practice accountability, feminist legislators will need to engage in “self-critique” and accept “when things are not working, even when it seems that we’ve done everything,” as Martha Tagle and Hortesia Vásquez suggested to me. This may, in turn, allow them to find new ways for challenging the dynamics of gendered state resistance, including simulation.
Footnotes
Appendix 1
Authors’ note:
I am grateful to Salina Abji, Emily Laxer, Myra Marx Ferree, Anna Korteweg, Ron Levi, and Karen Knop for their comments on earlier versions of this article. I also benefited from comments by Lisa Brush, James Messerschmidt, and other participants at the 2017 American Sociological Association annual meeting. I also thank the anonymous reviewers and editorial team for providing detailed and challenging feedback. This research was supported by the Canadian Social Sciences and Humanities Research Council Vanier CGS and Post-doctoral Fellowship.
Notes
Paulina García-Del Moral is an assistant professor in the Department of Sociology & Anthropology at the University of Guelph, Canada. She is interested in the intersection of gender, law, and power in transnational processes in Latin America and Canada. Her work has been published in Law & Society Review, Signs: Journal of Women in Culture & Society, and Current Sociology, among other venues.