Introduction: Conceptualisations of Violence

Feminist legal scholarship has long been concerned with the subject of violence. In fact, some of the core contributions of feminist legal scholarship in Australia and worldwide have been to identify and examine the specific forms of violence faced by women – and critically, to move beyond perceptions of such violence as being comprised of discrete and private acts between individuals to illuminate its structural impacts and causes.¹ However, prevailing scholarly and legal conceptualisations of ‘violence’ continually frame it as a phenomenon that is predominately direct and physical. There is a need to challenge and expand on these conceptualisations of violence. This special issue seeks to fulfil this aim by drawing together feminist scholarship relating to structural violence and women’s lived experiences of violence, as well as philosophical and phenomenological accounts which challenge established and widely accepted understandings of violence.

Our call for papers was launched during the COVID-19 pandemic, when important questions were being raised concerning the treatment of marginalised members of our community, and during the growing backlash to movements such as #MeToo which saw an upswing of what has been called ‘an asphyxiating vortex of litigation’.² We saw a need to complicate the notion of ‘violence’ as being direct and predominantly physical in nature. It seemed there were clear examples of other forms of violence occurring around us, with several actors – including the state itself – perpetuating structural forms of violence. This special issue is motivated by a desire to examine different forms of violence, to examine commonalities and distinctions between different forms of violence, and to interrogate terminologies such as ‘harm’, ‘abuse’, ‘vulnerability’, and ‘injustice’ that are routinely used in this context.

We are delighted to have contributions to this special issue that examine contemporary problems and push the boundaries of the conversation on the nature of violence itself. The first part of this special issue concerns topical conceptualisations of violence. It covers structural violence perpetuated by the state, legal systems as a form of harm against women, and the criminalisation of a greater spectrum of forms of family and domestic violence. The second part of this special issue presents three novel theoretical conceptualisations of violence: first, the gendered experience of anticipating violence, second, the phenomenon of ‘stuckedness’ and its relationship to violence and the law and, third, the violence of legal processes.

Part One: Topical Legal Conceptualisations of Violence

The first article in this special issue concerns structural violence perpetuated by the state. In Pan Karanikolas and Tessa-May Zirnsak’s ‘Vulnerable to the State? The Indefinite Imprisonment of People with Intellectual Disability under Forensic Mental Health Law as Structural Violence’,³ the authors ask important and timely questions about the law’s role in structural violence perpetrated by state legal and bureaucratic systems that concern people with intellectual disability.⁴ The authors also identify cultural violence in the form of ableist norms embedded in social customs and norms, which underpin the article’s analysis.

By identifying and examining this ableist violence perpetuated by current forensic mental health laws,⁵ the authors critique the indefinite imprisonment of people with intellectual disability who have been criminalised under the guise of protectionist state policies which frame intellectually disabled people as ‘vulnerable’.⁶ The authors challenge this framing and argue that, on closer interrogation, it is the state’s institutions and policies themselves that create an environment that renders people with intellectual disability vulnerable to violence. That is, state produced vulnerability. The authors examine a case study of a woman named Sue to illustrate how state legal and bureaucratic systems subject people with intellectual disability to structural violence. In Sue’s story, the reader is shown how the state’s institutions and policies in fact manufacture the vulnerability from which it claims to protect intellectually disabled people, and then responds to this extant ‘vulnerability’ through carceral means. As the broader advocacy and policy work within which Karanikolas and Zirnsak’s article is situated highlights, this institutionalised manufacturing of vulnerability manifests along intersectional lines. That is, ableism interacts with racism, sexism, and other forms of systemic oppression to problematise the application of forensic mental health laws. In the Australian context, it is particularly pertinent to note the disproportionate violence perpetuated pursuant to such laws at the intersections of ableism and racism against First Nations peoples.⁷

The second article in this part, ‘Defamation Law and Epistemic Harm in the #MeToo Era’ by Michelle Harradine, argues that the application of current Australian defamation laws in the context of the #MeToo movement results in epistemic harm to victim-survivors of sexual misconduct.⁸ The author discusses how, in defamation proceedings, victim-survivors are involved as witnesses and thus subjected to questions of credibility that affirm fallacies and misconceptions about sexual misconduct and gendered harm. Harradine observes how ‘testimonial injustice’ occurs where ‘credibility deficits are applied to the testimony of the subordinate group member to support the position of the dominant’ noting that current defamation laws prioritise the reputations of alleged perpetrators of sexual misconduct while disregarding the lived experiences of victim-survivors.⁹ Harradine’s analysis is founded on a close analysis of Australian defamation laws and the nature of civil jurisdiction in this context, including the presumption of falsity and the burden of proof placed on victim-survivors (or those who publish victim-survivor accounts) to establish the defence of justification.¹⁰

Drawing on contemporary cases brought against victim-survivors of sexual misconduct, the author reveals how defamation proceedings effectively place victim-survivors on trial at the behest of powerful public figures accused of sexual misconduct. Like Karanikolas and Zirnsak above, Harradine draws on the lived experiences of victim-survivors to highlight how the law fails to serve them. Further, Harradine observes how the legal system is built upon implicitly male norms of so-called rationality, objectivity, and credibility while excluding and undermining women’s accounts of the nature of gendered harms.

Finally, Harradine argues that epistemic harm in the form of testimonial injustice that operates to discredit women’s testimonies often creates ‘insurmountable evidentiary burdens’ in favour of men’s innocence.¹¹ Overall, Australian defamation law is an example of how women’s speech, when it threatens the reputations and authority of some men, is regulated and punished.

The third article in this part, ‘Law Reform Processes and Criminalising Coercive Control’ by Jane Wangmann, analyses recent developments in Australian law reform regarding the criminalisation of coercive control as a form of family and domestic violence.¹² Building on Graycar and Morgan’s ‘Law Reform: What’s in it for Women?’,¹³ Wangmann analyses the processes of the New South Wales Joint Select Committee on Coercive Control,¹⁴ the Queensland Women’s Safety and Justice Taskforce,¹⁵ and South Australia’s exposure draft Criminal Law Consolidation (Abusive Behaviour) Amendment Bill 2021.¹⁶

Whether coercive control should be criminalised as a form of family and domestic violence has been avidly discussed in Australia¹⁷ since the introduction of like offences in the UK and Ireland in 2019.¹⁸ In particular, Aboriginal and Torres Strait Islander scholars and advocates have highlighted how these proposed offences, being grounded in criminal law, would not properly address victim safety and instead are likely to disproportionately criminalise First Nations peoples – or even misidentify First Nations victim-survivors as perpetrators of domestic abuse.¹⁹ Indeed, more broadly, scholars have observed that ‘criminal law has proved ineffective and harmful for some women, particularly those who are more marginalised’.²⁰

While noting that the substantive proposals to criminalise coercive control are arguably problematic in and of themselves, Wangmann’s article focuses on the quality of the law reform processes related to the criminalisation of coercive control. Wangmann’s methodical consideration of law reform processes in this context reveals the procedural doing of law through a feminist lens. Wangmann observes that these reform processes have a narrow scope in that they provide for ‘formal legal change’ only, and do not implement broader changes that consider the holistic social and institutional context surrounding any proposed criminal offence.²¹ Such a narrow approach, she argues, raises issues around policing and the colonial, masculine culture of the criminal legal system beyond the scope of review. In Wangmann’s words, ‘passing legislation’ would merely be the ‘easiest step’ arising from these processes.²²

Wangmann’s article thus represents an important addition to existing scholarly critiques of proposals to criminalise coercive control, which highlight that, in the absence of structural and institutional change, the implementation of new criminal laws could cause more harm than progress, particularly due to policing biases at the intersection of sexism and racism.²³ As Wangmann points out, this begs the question: Why must the state’s reflex response to violence involve a ‘criminalisation paradigm’?²⁴

In this way, Part One of this special issue provides timely critical analysis of recent issues concerning forms of violence faced by women and other marginalised members of the community – observing, importantly, how the state and legal systems themselves can engender harms. Whether by creating vulnerability in the context of the incarceration of people with an intellectual disability as discussed by Karanikolas and Zirnsak, placing victim-survivors on trial in the context of a legal system that prioritises the interests and biases of the dominant social group as discussed by Harradine, or the adoption of new criminal laws without adopting holistic reform as discussed by Wangmann – these authors discuss how different forms of violence and harm can be enacted in ways that are not direct or physical in nature. Rather, these are forms of violence and harm that occur in diffuse and indirect ways, that nevertheless perpetuate and exacerbate forms of harm against woman and marginalised communities.

Part Two: Theoretical Conceptualisations of Violence

Part Two of this special issue presents novel contributions that extend understandings on the nature of violence itself. The first contribution to Part Two, titled ‘Moving in a State of Fear: Ambiguity, Gendered Temporality, and the Phenomenology of Anticipating Violence’ by Joy Twemlow, Catherine Turner, and Aisling Swaine, focuses on the phenomena of the anticipation of violence.²⁵ The authors argue that dominant legal understandings of violence are incapable of grasping the phenomenological structure of such violence. They contrast the anticipation of violence against traditional legal definitions of violence as temporally ‘linear’ and centring on an act of violence as a ‘concrete event’.²⁶ On the other hand, the anticipation of violence is defined as the potential/future occurrence of an act of violence that is temporally and spatially ‘suspended in ambiguity’.²⁷

Twemlow, Turner, and Swaine argue additionally that gender materially impacts how women experience and, critically, anticipate violence, which manifests in how women move through space and time in order to navigate the possibility of experiencing violence. For example, by limiting the spaces they inhabit or the interactions they make. In making these arguments, their article draws on rich qualitative data in the form of interviews with women holding leadership positions in the areas of civil society, justice and security, and elected politics.

Lastly, the authors draw on feminist phenomenological ethics in answer to the identified phenomena of anticipating violence. That is, Twemlow, Turner, and Swaine do not call on the law itself to ‘answer’ or ‘solve’ women’s experiences of anticipating violence, prompting the question: ‘When is law helpful (or harmful)?’ in response to gendered experiences of violence, harm, or injustice. They argue that criminal legal institutions cannot (and should not) ‘respond to acts that have not yet taken place’.²⁸ Moreover, a legal response to anticipating violence, it is argued, would require women’s experiences to be diminished or constrained in order to ‘fit’ into the law (and not vice versa). In other words, ‘what it means to navigate the world’ as a woman anticipating violence and the harms this experience generates would be ‘rendered invisible and irrelevant’ if viewed through the limiting frame of the law.²⁹ Instead, the authors imagine alternative possibilities beyond the law, in the form of relational ethics, with the aim of validating, rather than minimising, women’s experiences of the anticipation of violence.

The second contribution to Part Two of this special issue, Gabrielle Mardon and Louise Richardson-Self’s ‘Stuck in Suffering: A Philosophical Exploration of Violence’ asks ‘What do we mean when we say violence?’ and ‘Is the elasticity with which the term violence is used a stretch too far?’³⁰ The great strength of this article is the conceptual care with which Mardon and Richardson-Self build their own theory of what unifies conceptualisations of violence by considering the varied ways in which violence is treated in the literature, including structural, symbolic, epistemic, psychosocial, and linguistic violence.³¹ They argue that often the phenomena being described is not ‘violence-proper’ – that is, non-consensual bodily force, being the ‘paradigm conception of violence’³² – but an experience of injustice, in particular, the way in which victims of violence become ‘stuck’ in suffering.³³ Conceptualisations of violence in the literature tend to describe a type of suffering experienced by victims – or a broader sense of injustice – more so than violence-proper. Mardon and Richardson-Self then warn against the stretching of the term violence to ‘meaninglessness’.³⁴ The authors suggest that shifting our focus to the nature of victims’ experiences of violence so-called can assist in unravelling violence as an all-encompassing descriptor.

Conceptualising the suffering experienced by a victim of violence as waves or ripples on the surface of water (i.e. the after-effects of a paradigmatic act of violence), the authors unpack the temporal elements (including retention and protention) of suffering to conclude that what scholars are ‘trying to capture when they call non-paradigm phenomena “violence”’ is, in fact, ‘[s]tuckedness due to suffering’.³⁵ The authors argue that suffering apart from paradigmatic violence should properly be referred to as injustice. Based on this analysis, the authors reflect on ‘the law’s fraught capacity to alleviate all suffering’³⁶ and, in the author’s re-framing, to deal with ‘injustices’ beyond paradigmatic violence. Like other authors contributing to this collection, they also explicitly acknowledge the law’s capacity to exacerbate as well as alleviate relevant harms, in this case suffering flowing from injustice.

The final contribution in Part Two in this Special Edition, ‘Violence in the Name of Equality: The Postal Survey on Same-Sex Marriage, LGBTQIA+ Activism and Legal Redemption’ by Odette Mazel, considers the postal survey as a violent act in the name of the law and navigates the tensions between law’s capacity for violence and redemption. Mazel adopts Cover’s theory of law as the interpretive framing for her analysis; theorising law as simultaneously playing a role in producing social injustice and having the potential to repair those same injustices. Drawing on Cover, Mazel positions the ‘law as inherently violent’ on the one hand, with legal meaning never existing ‘in isolation from violence’.³⁷ On the other hand, she recognises the ‘jurisgenerative’ ability of the law and the capacity of the community to make and change law.³⁸

While recognising the harm that the postal survey caused to people within the LGBTQIA+ community, as well as the broader background of ‘targeted legal violence against LGBTQIA+ people’,³⁹ Mazel’s article presents qualitative data from interviewees expressing optimism regarding the same-sex marriage law reform that resulted from the postal survey. The article’s contributions extend beyond optimistic reflections of the law as a tool for change and documents ‘queer jurisprudence in operation’.⁴⁰ The author does this by highlighting legal achievements that can be credited to the dedicated activism of LGBTQIA+ people, engaging with, as well as working against, the law. In the words of one of Mazel’s interviewee’s we can use ‘the law to change the law’.⁴¹ The reader is left pondering the desirability of using the master’s tools to dismantle the master’s house, as well as the inherent limitations of attempting to do so.⁴²

Mazel’s analysis is reflective, pragmatic, and timely. She recognises the violence inherent in the law, including the explicit and implicit criminalisation, exclusion, restriction of and discrimination against the LGBTQIA+ community. Equally, she is able to celebrate the powerful advocacy and activism of the LGBTQIA+ community in their own advancement before the law, therein providing an optimistic closing note for this special issue.

Conclusion

Together, the contributions in this special issue represent a significant and relevant intervention in conversations around gendered harms, the reinforcing and interrelated ways in which they manifest, and the law’s role in responding to them. The special issue queries the prioritisation of carceral responses to physical and non-physical violence as opposed to civil or non-legal avenues (see in particular Karanikolas and Zirnsak and Wangmann) and critiques the role that the law and legal institutions play in inflicting structural violence against marginalised communities (see in particular Karanikolas and Zirnsak and Mazel). More broadly, it prompts and considers questions regarding the appropriateness of the law as an avenue to respond to women’s experiences of violence considering the normatively masculine (and colonial) nature of the law (see in particular Harradine, Wangmann, and Twemlow, Turner, and Swaine). It also challenges readers to consider how violence is conceptualised legally to begin with, and what it means to explore the conceptual differences between violence, harm, and injustice (see in particular Mardon and Richardson-Self).

In every contribution to this special issue, the authors highlight the capacity of the law to both help and harm, in responding to violence and in producing violence of its own. The nature of the law as a double-edged sword is illustrated acutely in Part One of the special issue, in several contemporary contexts including the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, defamation law in the #MeToo era, and the criminalisation of coercive control. In Part Two of the special issue, these capacities are theorised through extrapolations of violence as temporally and spatially fluid, and of law as having both violent and redemptive qualities.

We hope you enjoy reading the collection as much as we have enjoyed editing it.

Disclosure Statement

No potential conflict of interest was reported by the author(s).

Notes

1 See, for example, Shazia Choudhry, ‘Towards a Transformative Conceptualisation of Violence Against Women – A Critical Frame Analysis of Council of Europe Discourse on Violence Against Women’ (2016) 79 Modern Law Review 406; Donna Chung, ‘Questioning Domestic Violence Orthodoxies: Challenging the Social Construction of Women as Victims and as Being Responsible for Stopping Male Violence’ (2002) 11 Women Against Violence: An Australian Feminist Journal 7; Mala Htun and Francesca Jensenius, ‘Fighting Violence Against Women: Laws, Norms & Challenges Ahead’ (2020) 149 Daedalus 144; Rashida Manjoo and Daniela Nadj, ‘“Bridging the Divide”: An Interview with Professor Rashida Manjoo, UN Special Rapporteur on Violence Against Women’ (2015) 23 Feminist Legal Studies 329 and Kelly Weisberg (ed), Applications of Feminist Legal Theory (Temple University Press 1996).

2 Richard Ackland, ‘#MeToo has led to an asphyxiating vortex of litigation’ The Guardian (online, 3 April 2018) <https://www.theguardian.com/commentisfree/2018/apr/03/metoo-has-led-to-an-asphyxiating-vortex-of-litigation>.

3 Pan Karanikolas and Tessa-May Zirnsak, ‘Vulnerable to the State? The Indefinite Imprisonment of People with Intellectual Disability under Forensic Mental Health Law as Structural Violence’ (2022) 48(1) Australian Feminist Law Journal 11.

4 David Graeber, ‘Dead Zones of the Imagination: On Violence, Bureaucracy, and Interpretive Labor’ (2012) 2(2) Journal of Ethnographic Theory 105,112 as cited by Karanikolas and Zirnsak, above n 3 at 11, 15.

5 Crimes Act 1900 (ACT); Criminal Law Consolidation Act 1935 (SA); Criminal Code 1983 (NT); Mental Health (Forensic Provisions) Act 1990 (NSW); Criminal Law (Mentally Impaired Accused) Act 1996 (WA); Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic); Criminal Justice (Mental Impairment) Act 1999 (Tas); Mental Health Act 2016 (Qld).

6 The authors draw on scholarship including Margrit Shildrick, Embodying the Monster: Encounters with the Vulnerable Self (Sage Publications 2002); Judith Butler, Precarious Life: The Powers of Mourning and Violence (Verso 2004); and Andrea Hollomotz, ‘Disability, Oppression and Violence: Towards a Sociological Explanation’ (2013) 47(3) Sociology 477.

7 See, eg, Eileen Baldry, ‘Australia’s Shameful Detention of People with Cognitive Disability Must Stop’ (UNSW Newsroom, 18 February 2021) <https://newsroom.unsw.edu.au/news/social-affairs/australias-shameful-detention-people-cognitive-disability-must-stop> accessed 21 September 2022; Lisa Hindman, ‘Advocates Call for Greater Focus on Indigenous People with Disability in Detention’ (First Peoples Disability Network Australia, 23 February 2021) <https://fpdn.org.au/advocates-call-for-greater-focus-on-indigenous-people-with-disability-in-detention/> access 21 September 2022.

8 Michelle Harradine, ‘Defamation Law and Epistemic Harm in the #MeToo Era’ (2022) 48(1) Australian Feminist Law Journal 31.

9 ibid 48.

10 Defamation Act 2005 (NSW). See also Civil Laws (Wrongs) Act 2002 (ACT); Defamation Act 2005 (Qld); Defamation Act 2005 (Tas); Defamation Act 2005 (Vic); Defamation Act 2005 (SA); Defamation Act 2005 (WA); Defamation Act 2006 (NT).

11 Harradine, above n 8 at 36.

12 Jane Wangmann, ‘Law Reform Processes and Criminalising Coercive Control’ (2022) 48(1) Australian Feminist Law Journal 57.

13 Reg Graycar and Jenny Morgan, ‘Law Reform: What’s in it for Women’ (2005) 23 Windsor Yearbook of Access to Justice 393.

14 Joint Select Committee on Coercive Control, Coercive Control in Domestic Relationships, Report 1/57 (Parliament of NSW, 2021).

15 Queensland Women’s Safety and Justice Taskforce, Hear Her Voice: Report One: Addressing Coercive Control and Domestic and Family Violence in Queensland (Queensland Taskforce 2021).

16 Criminal Law Consolidation (Abusive Behaviour) Amendment Bill 2021 (SA).

17 See scholarship by authors such as Sandra Walklate, Kate Fitz-Gibbon and Jude McCulloch, ‘Is More Law the Answer? Seeking Justice for Victims of Intimate Partner Violence through the Reform of Legal Categories’ (2018) 18(1) Criminology & Criminal Justice 115; Leigh Goodmark, ‘Gender-based Violence, Law Reform and the Criminalization of Survivors of Violence (2021) 10(4) International Journal for Crime, Justice and Social Democracy 13, 15 and Julia Tolmie, ‘Coercive Control: To Criminalize or not to Criminalize’ (2018) 18(1) Criminology & Criminal Justice 50.

18 Serious Crimes Act 2015 (England and Wales); Domestic Abuse (Scotland) Act 2018; Domestic Abuse and Civil Proceedings Act (Northern Ireland) 2021; Domestic Violence Act 2018 (Ireland).

19 See, in particular, the advocacy of the Victorian Aboriginal Legal Service: VALS, Addressing Coercive Control Without Criminalisation: Avoiding Blunt Tools that Fail Victim-Survivors (Policy Paper 2022).

20 Wangmann, above n 12 at 61. See also: Heather Douglas, Women, Intimate Partner Violence, and the Law (Oxford University Press 2021) and Leigh Goodmark, Decriminalizing Domestic Violence: A Balanced Policy Approach to Intimate Partner Violence (University of California Press 2018).

21 Wangmann, above n 12 at 80.

22 ibid 81.

23 See Muslim Women Australia (Submission No 86 to the Joint Select Committee on Coercive Control, 29 January 2021); ANROWS, Accurately Identifying the ‘Person in Need of Protection’ in Domestic and Family Violence Law (Research Report, 2020) and Heather Nancarrow, Unintended Consequences of Domestic Violence Law: Gendered Aspirations and Racialised Realities (Palgrave Macmillan 2019) as cited by Wangmann, above n 12 at 69 and 75.

24 Julia Quilter, ‘Evaluating Criminalisation as a Strategy in Relation to Non-physical Family Violence’ in Marilyn McMahon and Paul McGorrery (eds), Criminalising Coercive Control: Family Violence and the Criminal Law (Springer 2020) as cited by Wangmann, above n 12 at 81.

25 Joy Twemlow, Catherine Turner and Aisling Swaine, ‘Moving in a State of Fear: Ambiguity, Gendered Temporality, and the Phenomenology of Anticipating Violence’ (2022) 48(1) Australian Feminist Law Journal 87.

26 ibid 89.

27 ibid.

28 ibid 95.

29 ibid 93.

30 Gabrielle Mardon and Louise Richardson-Self, ‘Stuck in Suffering: A Philosophical Exploration of Violence’ (2022) 48(1) Australian Feminist Law Journal 113.

31 ibid 115–120.

32 Mardon and Richardson-Self define ‘violence-proper’ or the ‘paradigm conception of violence’ as ‘physical force between an agent and a victim (or victims), inflicting some kind of suffering or harm’. Or, in other words, when ‘A hits B, and B hurts’: ibid 113–114.

33 ibid 130.

34 Marylin Frye, The Politics of Reality: Essays in Feminist Theory (Crossing Press 1983) 1 as cited by Mardon and Richardson-Self, above n 30 at 122.

35 Mardon and Richardson-Self, above n 30 at 127.

36 ibid 132.

37 Robert M Cover, ‘The Folktales of Justice: Tales of Jurisdiction’ (1985) 14 Capital University Law Review 179, 182.

38 Odette Mazel, ‘Violence in the Name of Equality: The Postal Survey on Same-Sex Marriage, LGBTQIA+ Activism and Legal Redemption’ (2022) 48(1) Australian Feminist Law Journal 137, 139.

39 ibid.

40 ibid.

41 ibid 158.

42 Audre Lorde, ‘The Master’s Tools Will Never Dismantle the Master’s House’ (1984) Sister Outsider: Essays and Speeches 110–14.