‘There are important racial, ethnic and religious minorities in
Australia who come from nations with sexist traditions which,
in some respects, are even more pervasive than those of the West’.
- James Spigelman, Chief Justice of NSW, April 2010.
When the chief justice of a state, in his enunciative capacity, speaks of minorities with ‘sexist traditions’ in a post 9/11 world, it is not difficult to guess which groups are about to be imputed. That the Middle East and South Asia are the likely culprits, with Islamic communities singled out for special attention, the terms of the discourse are immediately set in the confines of the Orientalist episteme.[1]
James Spigelman’s words were widely published in the Australian English-language press as an edited extract from a speech he gave to the UNSW Law, Governance and Social Justice Forum at the University of NSW. The headlines that accompanied this piece ranged from ‘When Laws Clash with Culture’ and ‘Sexist migrants create legal problems’ (Gibson, 2010), to ‘Honour Killings coming to our courts: top judge’ (Gibson, 2010).[2] So, this is where we enter the discursive minefield.
While the two examples of violence against women cited by Spigelman – ‘honour killings’ and forced marriages – are not exactly new to Australia, having been practiced across various communities over the last 222 years of colonial settlement, the fingering of the usual suspects provides a contemporary context of how the Orientalist scheme of knowing both determines the conditions and fixes the limits of public discourse when issues around race, gender, sexuality, culture and violence enter the ‘news’.
Inclination speaks out: ‘I don’t want to have to enter this risky world of discourse; I want nothing to do with it insofar as it is decisive and final …’ (Foucault 1972: 215)
Spigelman[3] prefaces his entrée into this difficult terrain by drawing on the experiences of Indigenous communities and the ‘conflict of values’ when it comes to applying the ‘law’, ‘most clearly in the Northern Territory intervention triggered by revelations of physical abuse of women and children, mainly girls’ (Spigelman, 2010). While the Chief Justice inserts the voice of Aboriginal human rights activist Mick Dodson into his text to counter the idea that violence is ‘cultural’, he does not mention in his published extract that in order for the white ‘Intervention’ to occur, the Racial Discrimination Act (RDA) was suspended by the former Howard administration, and this unacceptable state of play continues with the current Rudd government, despite platitudes to re-instate the RDA by 31 December 2010. Even so, core Intervention policies such as compulsory income management and 5-year leases over Aboriginal land look set to continue. This is but one example that highlights the hypocrisy of the ‘majority culture’ that professes to not be ‘able to compromise on the criminalisation of physical violence’ (Spigelman, 2010), but is more than happy to allow for slippage when it comes to the violence of racial inequality when the political agenda necessitates.[4]
Spigelman’s thesis that ‘violence against women is significantly greater in some social groups, whether or not it is based on cultural tradition’ is concerned with non-Anglo groups rather than football fraternities and other such ‘social groups’ here. That he ‘takes heart’ in Dodson’s assertion that, ‘[Aboriginal people] have no cultural traditions based on humiliation, degradation and violation … Most of the violence, if not all, that our brittle communities are experiencing today [is] not part of Aboriginal tradition or culture’ hardly absolves the Chief Justice of articulating an essentialist position that takes us nowhere we have not already been.
Many in the South Asian and Muslim communities in Australia equally would reject the notion that violence is part of their culture or tradition. Who wouldn’t? Critical anti-racist feminists for their part would argue that violence against women and girls is a feature of masculinist culture that cuts across ethnicity, race, religion and socio-economic background. Research bears this out, most notably that violence against women and girls is more likely to occur where there are rigid gender roles, weak support for gender equity, a sense of masculine entitlement, male dominance and control in relationships (Webster 2007), all of which are prevalent in both Western and non-Western groupings.
Spigelman’s claim that there is ‘a fundamental conflict between a human rights approach and the tolerance of cultural traditions’ is oppressive in that he sets up a supremacist allegory that positions the ‘majority culture’ as having a human rights culture (modern and secular), and ‘minority cultures’, i.e., those with cultural traditions (‘the other’), as lacking in human rights culture (primitive and religious). This approach does not augur well if dialogue is the object. Siege mentality, moral absolutism and defensive reactionism are to be expected.
Institutions reply: ‘But you have nothing to fear from launching out; we’re here to show you discourse is within the established order of things, that we’ve waited a long time for its arrival, that a place has been set aside for it – a place which both honours and disarms it; and if it should happen to have a certain power, then it is we, and we alone, who should give it that power’. (Foucault 1972: 216)
Foucault sees the notion of tradition as intended to give ‘special temporal status to a group that is both successive and identical’ (1972: 21). It is the non-Anglo /non-white subject who is invested with tradition in Spigelman’s tent. Tradition, like race, is all but effaced when it comes to framing issues of gender, culture and violence if you are white. When a white male assaults or kills his wife, it is not the practice of the majority culture to invoke race, culture or tradition as a mitigating factor. At worst, it might be referred to as a ‘crime of passion’; at best, domestic homicide or intimate partner terrorism.
When a brown man perpetrates these sorts of acts of violence against women, race, religion and culture become crucial to the narrative. Further, his ‘community’ must take responsibility for the violence, whereas, the white male is an atomised individual who operates outside the normativity of his ‘community’.
It is important to acknowledge these racial double standards from the outset in order to develop an anti-racist practice for publicly speaking about violence against women. If we are committed to combating violence against women and girls regardless of culture, religion or origin, then learning a race-neutral language is crucial so that we are able to speak of the specificities of violence that afflict different women and girls’ lives, rather than persisting in the pretence that some cultures are more violent than others.[5]
Activist Purna Sen critically explores these issues in her essay, ‘“Crimes of honour”, value and meaning’, arguing that to posit a specificity that is flawed and one that fails to see linkages is as problematic as it is to deny specificity if it exists (2005: 50). We must situate ‘honour killings’ within an understanding of violence against women in a contemporary and localized context, and in so doing, we might avoid making sweeping generalizations about regions and religions.
‘I now know which voice it was I would have wished for, preceding me, supporting me, inviting me to speak and lodging within my own speech’. (Foucault 1972: 237)
By uncritically mobilising the term ‘tradition’, Spigelman creates a temporal disjuncture that pushes the other back in time and thus infuses the South Asian and the Muslim with backwardness. By deploying this strategy of temporal distancing, Spigelman is able to freeze the other in the past and therefore in a state of immutability, thus diminishing the possibilities for change.
There is a contemporaneous urgency to scrutinise the structures and the social and political conditions (both internal and external) that perpetuate violence against women, rather than distancing the other from the modern present. Spigelman’s foray into the public sphere thus begs the question: ‘What does it mean to talk of honour killing?’ (Sen 2005: 42).
‘To Westerners, honour killings are seen as anachronistic, scarcely believable, anthropological phenomenon that continues only in a few rare, isolated, still primitive pockets – like head-hunting in New Guinea’.
Norma Khouri (2003:196)
In Australia, we have come to know the trope of ‘honour killing’ as proof of Islamic misogyny. Norma Khouri’s book Forbidden Love, published in 2003 brought the subject of ‘honour killing’ to the fore. Selling over 200,000 copies, then Brisbane-based Khouri told the ‘non-fictional’ story of her ‘friend’ Dalia, a Jordanian woman who died at the hands of her father and brother. A profoundly flawed text replete with factual inaccuracies, internal contradictions and plot inconsistencies, the book was an instant best seller. Khouri was invited to speak at International Women’s Day events and feted as feminist of the moment on the back of this book (or perhaps it was the fetishised cover). Of course, the book turned out to be fiction and Khouri was sent to the sin-bin for duping her loyal following, mostly a Western female public, her publisher and media, not to mention undermining the pulp Orientalist ‘non-fiction’ industry.
Sen confirms that ‘the term honour killings is more widely known at the start of this century than in the previous decade and such killings are increasingly cast as emblematic of the problematic nature of one religion – Islam – and its treatment of women’ (Sen 2005: 42).
She writes:
In the post-September 11 climate, some Western concerns with honour killings so closely overlap the anti-terror discourse through exactly this recourse to almost knee-jerk condemnation of Islam that a Western anti-honour-killings agenda is in danger of being deeply mired in Islamophobic potential. In this context, any identification of the specificity and particularity of crimes and killings associated with honour codes is in danger of sharing this reception’. (Sen 2005: 42)
This is precisely where the limits of Spigelman’s discourse are most obvious. He references European experiences, noting that ‘significant issues have arisen, particularly for Islamic and south Asian communities’ and believes as ‘we have significant communities from the Middle East and south Asia in Australia, we are unlikely to avoid similar issues’ (Spigelman 2010). The condensing of geographical regions into a discrete homogeneity is at once problematic, and the singling out of Islamic communities explicitly feeds into the viral anti-Muslim animus that pulses through the globalised Western-leaning nation.
Feminist theorist Haideh Moghissi argues that,
‘the spatio-temporal existence of Islam points to the heterogeneity of “Islamic culture”. The idea that Islam as a kind of meta-culture obscures the reality that, as Aziz Al-Azmeh has noted, there are many “Islamic cultures” as different geographical, social conditions, size of wealth and educational levels can produce (Al Azmeh, 1993: 6-8) … there are differences among Shi’i and Sunni Maliki, Hanbali and Hanafi schools of law on such issues as compulsory marriage and child marriage …’. (Modghissi 1999: pp17-18)
The point Moghissi goes on to make is that ‘Islam cannot be taken, perhaps, as the sole signifier of the situation of women in Islamic societies’ as class, wealth, the processes of social and economic development, the strength of local customs and cultural practices all inform and define women’s varied life options and gender experiences (Moghissi 1999: 18). Certainly, Muslim communities in Australia are as culturally and ethnically diverse, disparate and hybrid as all other faith-based communities in the nation and surely can’t so easily be bundled into a neat little singularity all sharing the same culture, traditions and practices.
Insofar as cultural practices are concerned, theorist Anne Phillips provides a nuanced interrogation of culture and the legal system where Spigelman, for his part, simply avoids. In her chapter, ‘What’s wrong with Cultural Defence?’ Phillips critically assesses a series of cultural defence arguments, drawing on cases from the United States and British courts.
As a starting point, she argues that ‘culture can lend itself to opportunistic defences’ and ‘claims about what is normal within a particular cultural group are highly contentious’ (Phillips 2007:80). In unpacking the maneuvers at work in these contexts, Phillips notes that ‘something may be claimed as a cultural practice when it has long been contested or abandoned by other members of the group’ (2007:80). Significantly, she cites objections that recognise culture ‘as historically changing, open to a variety of interpretations, and internally contested’ (Phillips 2007:82), thus problematising the very idea that ‘culture’ is fixed and immutable, a singular and stable category.
‘I now understand better why I experienced so much difficulty when I began speaking, earlier on’ (Foucault 1972: 237).
Phillips suggests that ‘the use of a cultural defence inappropriately elevates cultural membership above other features … sustains and legitimates patriarchal practices, and encourages stereotypical representations’ (2007: 82). She makes the salient point that cultural defence,
‘like all defences leave themselves open to opportunism and manipulation. If you are defending yourself against a possible criminal sentence, you will presumably take what opportunities you can to present your acts in the most favourable light, and if citing some cultural practice or tradition promises to help, it’s likely you will choose to do so’. (Phillips 2007:83)
Phillips’ argument is underscored by the fact that the ‘question of stereotypes looms large: the stereotyping of culture as a purely minority phenomenon, the stereotyping of what are taken to be practices of specific cultural groups, and within that, the stereotyping of male and female behaviour’ (2007:84).
Thus, ‘any deployment of culture involves a stereotype’ (2007: 84) and the question that perhaps Spigelman could be asking is, ‘what kinds of stereotypes get mobilised in a cultural defence? (Phillips 2007: 85), rather than freezing groups into the past.
So, on the one hand, we have cultural relativism of the perpetrator and his supporters relying on the receptivity of the stereotype to minimise his sentence; and on the other, we have the cultural essentialism of Spigelman as way to talking about ‘the challenge to balance the objective of cultural equality and diversity against the protection of women from gender-based violence’ (Spigelman 2010). How do we move beyond the enclosures of relativism and essentialism when they are the frames that dominate discourses about gender, culture and violence in the public sphere?
Language is a good place to start. I strategically enclose the word ‘honour’ in inverted commas as a sort of short cut to problematising its use, perhaps because ‘honour’ is the perpetrator’s articulation of motive. Feminist activist and teacher Uma Chakravarti confirms this type of strategic gesture, seeing ‘scare quotes [as] act[ing] to distance feminists from [the term’s] ideological baggage’, but considers that this is ‘not enough of a distance’, and that we
‘must discard the term in search of another that does not mask the violence in the killing and abuses, but rather describes it more aptly, acknowledging feminist understandings of violence, which do not accept the ideology under which such violence is masked’.
(Chakravarti 2005:15)
As Dobash and Dobash ask, ‘do we us the perspectives of victims? Of those who peretrate the acts? Of researchers? Of the law? Of policymakers? Should researchers attempt to develop distinct, abstract, and definitive conceptualisations of these acts’(quoted in Welchman and Hossain 2005: 8)?
What is so perilous, then, in the fact that people speak, and that their speech proliferates? Where is the danger in that? (Foucault 1972: 216)
Finding race-neutral nomenclature is not a difficult task: femicide, intimate partner violence, domestic violence, domestic homicide are all terms in contemporary use. As the Southall Black Sisters’ strategically articulate in a campaign that reflects all these concerns: ‘There is no honour in domestic violence, only shame’ (Siddiqui 2005). And as criminologist Mark Findlay potently reminds us, ‘domestic violence – rather than rape or homicide – is the true face of crime epidemics in Australia’ (Findlay 2010).
‘I know now just what was so awesome at beginning; for it was here, where I speak now, that I listened to that voice, and where its [owner] is no longer, to hear me speak’ (Foucault 1972: 237).
Law scholar and teacher Abdullahi Ahmed An-Na’im provides a glimpse of what is possible in terms of engaging in productive community discourses outside the polemics of the mainstream. He writes,
‘It is not enough to condemn the crimes without developing specific strategies to prevent their occurrence, and to deal with perpetrators and their supporters …if engaging in community discourse can help to prevent ‘crimes of honour’ and/or hold perpetrators accountable … then those concerned with combating such practices should utilise and develop this approach’. (An-Na’im 2005: 64)
An-Na’im believes internal discourse within communities must be supported and promoted in order to transform family and community attitudes (2005: 65). Men must actively and voluntarily engage in this internal discourse, developing leadership around gender equity, and challenging their peers within as well as established leaders who insist on perpetuating gender bias and sanctioning violent acts against women and girls via cultural defences. Further, Anne Phillips adds that we ‘need to engage with citizens in their complex diversity, rather than through narrow preconceptions’ (Phillips 2007: 73).
Finally, activist and community worker, Hannana Siddiqui, argues for a ‘mature multiculturalism’ that takes ‘forward the human rights agenda and bridges the space between race and gender, demanding black and minority women’s rights without trampling on the rights of black and minority communities’ (2005: 279). These are the critical voices that I want to hear in the public sphere in Australia, not the ‘clash of civilisations’ scenario that refuses to go away.
Notes and References
An-Na’im, A. A. (2005) ‘The role of “community discourse” in combating “crimes of honour”: preliminary assessment and prospects’ in ‘Honour’ Crimes, Paradigms, and Violence Against Women (eds.) Welchman L. and Hossain, S Spinifex Press Victoria, Zed Books London & New York.
Chakravarti, U (2005) ‘From fathers to husbands: of love, death and marriage in North India’ in ‘Honour’ Crimes, Paradigms, and Violence Against Women (eds.) Welchman L. and Hossain, S Spinifex Press Victoria, Zed Books London & New York.
Dobash R.E. & R.P Dobash (1998) ’Cross-Border Encounters: Challenges and Opportunities’ quoted in ‘Honour’ Crimes, Paradigms, and Violence Against Women (2005) (eds.) Welchman L. and Hossain, S Spinifex Press Victoria, Zed Books London & New York.
Findlay, M. (2010) ‘Wobbly underbelly hides criminal truth’, published April 21
2010.
http://www.smh.com.au/opinion/society-and-culture/wobbly-underbelly-hides-criminal-truth-20100420-srk8.html cited 21 April 2010.
Foucault, M. (1972) The Archeology of Knowledge and the Discourse on Language Pantheon Books New York.
Gibson, J. ‘Sexist migrants create legal problems’ published April 16, 2010.http://www.smh.com.au/national/sexist-migrants-create-legal-problem-20100415-shs6.html cited 20 April 2010.
Gibson, J. ‘Honour killings coming to our courts: top judge’ published April 16 2010. http://www.watoday.com.au/national/honour-killings-coming-to-our-courts-top-judge-20100416-shx0.html cited 20 April 2010.
Hall, S. (2002) ‘The Work of Representation’ in Representation: Cultural Represetations and Signifying Practices (ed.) Stuart Hall Sage Publications London.
Khouri, N. (2003) Forbidden Love, Bantam Books Sydney.
Moghissi, H. (1999) Feminism and Islamic Fundamentalism: The Limits of Postmodern Analysis Zed Books London & New York.
Phillips, A (2007), Multiculturalism without Culture Princeton University Press Princeton & Oxford.
Sen, P. (2005) ‘ “Crimes of honour”, value and meaning’ in ‘Honour’ Crimes, Paradigms, and Violence Against Women (eds.) Welchman L. and Hossain, S Spinifex Press Victoria, Zed Books London & New York.
Siddiqui, H (2005) ‘ “There is no ‘honour’ in domestic violence, only shame!” Women’s struggles against “honour” crimes in the UK’ in ‘Honour’ Crimes, Paradigms, and Violence Against Women (eds.) Welchman L. and Hossain, S Spinifex Press Victoria, Zed Books London & New York.
Spigelman, J. ‘When laws clash with culture’ published April 16, 2010. http://www.smh.com.au/opinion/society-and-culture/when-laws-clash-with-culture-20100415-shfy.html cited 20 April 2010 and http://www.brisbanetimes.com.au/opinion/society-and-culture/when-laws-clash-with-culture-20100415-shfy.html cited 20 April 2010.
Van Dijk, T.A. (1991), Racism and the Press Routledge London.
Webster, K. (2007) Preventing violence before it occurs : A framework and background paper to guide the primary prevention of violence against women in Victoria Melbourne.
http://www.vichealth.vic.gov.au/~/media/ProgramsandProjects/
MentalHealthandWellBeing/DiscriminationandViolence/PreventingViolence
/framework%20web.ashx
cited 20 April 2010.
Welchman L. and Hossain, S (2005) ‘Honour’ Crimes, Paradigms, and Violence Against Women Spinifex Press Victoria, Zed Books London & New York.
[1]I use the term ‘episteme’ in the Foucauldian understanding, that is, ‘characteristic of the way of thinking or the state of knowledge at any one time , [that] appear[s] across a range of texts, and as forms of conduct at a number of different institutional sites within society’ (Hall 2002: 44).
[2] Headlines express the most important information about a news event and exert a powerful influence on the interpretation of a news report according to media theorist Teun van Dijk. His study Racism and the Press (1991) indicates that the information in the headline is the information that is best recalled by readers. Loaded with ideological implications, headlines are the first and prominent textual categories of news (van Dijk 1991: 61), their function necessarily implying an opinion or a specific perspective on the events (van Dijk 1991: 51).
[3] Spigelman’s position is that of the liberal multiculturalist; his authority to speak is grounded in his past anti-racism activities. Liberal white multiculturalism is as problematic as ever as it elides the possibilities for a critical multiculturalism because it takes up so much space when an opportunity for dialogue presents itself. The limited positions of liberal multiculturalism range from cosmopolitanism to harmony and tolerance, hardly cognisant of the ethos of equality since they are all dependent on the majority culture’s deciding on what is cosmopolitan, tolerable and harmonious.
[4] This would be the same ‘majority culture’ that incarcerates Aboriginal men and women at a rate that tops per capita lists in the world. The same culture that systemically tolerates Black deaths in custody, and serially violates the human rights of refugees by incarcerating women, children and men, to placate white paranoia around border control and national security.
[5] Sen argues that ‘crimes of honour’ have become ‘emblematic of the backwardness of oriental cultures that exemplify the oppression of women (2005: 46). And while ‘honour killings share a number of features with other forms of violence against women’, they also have a number of characteristics that mark them out from other practices’ (Sen 2005: 50).
Too true. A just analysis. I am intrigued that he at least admits that the ‘west’ has pervasive sexist traditions, like no shit James.