The Impact of Adjacent Laws on Implementing Violence Against Women Laws: Legal Violence in the Lives of Costa Rican Women

Abstract

Most scholarship addressing implementation gaps of violence against women (VAW) laws focuses on countries with high levels of violence in the lives of women—accompanied by weak policing and judicial responses. These studies tend to argue that the most egregious forms of political or social violence explain this gap. However, there has been little attention to countries with lower levels of gender-based violence and relatively responsive state institutions. We analyze the application of VAW laws in Costa Rica, with a focus on the impact of adjacent laws, or laws that are seemingly unrelated to VAW laws but are applied in tandem with and often in conflict with VAW laws. Based on a decade of fieldwork in Costa Rica, we argue that adjacent laws on land, labor, and immigration can be leveraged in ways that undermine the interpretation and implementation of VAW laws. These failures constitute legal violence: the normalized but cumulatively injurious effects of laws that can result in various forms of violence. While legal violence causes implementation gaps in almost every country, our case study reveals that the underlying sociolegal system upon which these laws rest contributes to a significant gap between VAW laws and practice.

Blocking the Law from Within: Familyism Ideologies as Obstacles to Legal Protections for Women in El Salvador, Guatemala, Honduras, and Nicaragua

“…Failures in VAW laws implementation have been examined by explaining the gap between laws on the books and laws in practice. We build on this scholarship ( Adamson, Menjívar, and Walsh 2020 ; Ghosh and Choudhuri 2011 ) by focusing on obstacles to implementation that arise from the lower placement of VAW laws vis-à-vis the penal and judicial codes. Thus, we extend the scholarship on the gap by taking a step back, before implementation, to the inception of VAW laws to examine their legal positioning, a fundamental step to understanding obstacles to VAW law implementation.…”

“…One strand focuses on the legal doctrine (structure) of the law that makes it challenging to implement ( Ngozi, Iyioha, and Durojaye 2018 ). This perspective suggests that the laws’ evidentiary standards are obstacles to its implementation ( Adamson, Menjívar, and Walsh 2020 ). 7 When VAW laws are held to standards of other laws (i.e., penal code), providing evidence presents a challenge because cases of rape and feminicide often lack the evidence necessary to prove that the perpetrator committed the crime ( England 2018 ).…”

“…In Honduras, for example, state agencies have diverted resources away from efforts to protect women from violence to address more “serious crimes” (e.g., burglaries or gang crimes), thus belittling violence against women ( Menjívar and Walsh 2017 ). A third strand focuses on how “adjacent” laws governing marriage, family, and work ( Adamson, Menjívar, and Walsh 2020 ; Menjívar and Walsh 2016 ) may undermine the enforcement of VAW laws on the ground. This literature suggests that women seeking justice face challenges when other laws (e.g., civil code) are prioritized and are endangered when, for instance, restraining orders are denied because these violate the property rights of the aggressor (e.g., property law).…”

“…Violence against women laws are embedded in legal systems that contribute to maintaining the gap between the approval and implementation of legal provisions. Relationships between VAW and “adjacent laws” (e.g., those governing marriage, alimony, work, and land tenure) contribute to reproducing the symbolic and structural violence that women experience daily ( Adamson, Menjívar, and Walsh 2020 ; Walsh and Menjívar 2016 ). The scholarship on failures of VAW laws examines the importance of these links for protecting or undermining women’s rights ( Gould and Barclay 2012 ).…”