Intersectional Race and Gender Analyses: Why Legal Processes Just Don't Get It

Abstract

Legal processes, particularly those relating to criminal justice, have frequently been criticized for their inability to accommodate the experiences of racialized women. Recognizing categories of difference is difficult for processes that are framed within an ideology that emphasizes objectivity and universalism. The Australian Royal Commission into Aboriginal Deaths in Custody (RCIADIC) was a quasi-legal entity that investigated 99 Indigenous deaths in custody, as well as the underlying social, cultural and legal issues that may have had a bearing on those deaths. The RCIADIC, like many other legal processes, appears to have been unable to take an intersectional race and gender approach in its analysis. This article uses the RCIADIC inquiry to identify, describe and critically analyse the ways in which the dominant liberal ideology can, at times, operate to exclude racialized women. The reasons identified are based on the opinions and information collected from 48 interviews of people who either worked for the RCIADIC or were in some other way associated with the RCIADIC. The critical analysis presented in this article provides insights into how legal processes remain patriarchal in focus even when embarking on an inquiry about race.

White Female Bystanders’ Responses to a Black Woman at Risk for Incapacitated Sexual Assault

“…The significant finding regarding perceived pleasure matches with past research on the Jezebel stereotype (Donovan, 2007; West, 1995) as applied to Black women. This finding also matches with observations by scholars who have argued that a “worthy” or “good woman” embodies a specific type of femininity—dainty, passive, fragile, and worthy of protection—that is implicitly racialized as White (e.g., Marchetti, 2008; Pietsch, 2009). This form of White femininity contrasts with common negative stereotypes about Black women as strong, aggressive, hypersexual, and prone to misbehavior (Donovan, 2011; Ghavami & Peplau, 2013).…”

Looking Back, Looking Forward

“…Another example is that intersectionality theory has been employed to subject the operations of Royal Commissions to critical analysis for their failure to take appropriate account of racism and the experiences of racialized women (e.g. Marchetti, 2008). Moreover, at least in the Canadian context, many (perhaps most) feminist legal scholars are engaged in some activist or legal advocacy work, although the pressures of academia may restrict these efforts.…”

Victims or offenders

“…Overwhelmingly the view was that the inquiry focused on ‘race’, with an acknowledgement that Indigenous males were at the forefront of the racialized inquiry. The main explanation given for the racialized, male focus was that there was no requirement or request by Indigenous people to focus on gender (Marchetti, 2008). The disadvantaged position of Indigenous men, who were violent towards women, children and other community members, was afforded more concern and attention than the experience of Indigenous women at the hands of those men.…”

“…To be fair, nor was there an analysis of the males as males . However, some scholars, and the commissioners themselves, noted that the major focus of the inquiry was on the males who died, which is how the inquiry characterized the notion of ‘race’ – that it equated to being about young Indigenous males (Atkinson, 1996; Bulbeck; 3 Marchetti, 2008; Payne, 1992; RCIADIC, 1991b, Vol. 1, p. 357).…”