The Making and Unmaking of Feminicidio/Femicidio Laws in Mexico and Nicaragua

• Date: 01 June 2019
• DOI: http://doi.org/10.1111/lasr.12380
• Published date: 01 June 2019

The Making and Unmaking of Feminicidio/Femicidio

Laws in Mexico and Nicaragua

Paulina Garcı

´a-Del Moral Pamela Neumann

This article examines the contested process of law-making related to the

killing of women which resulted in the criminalization of feminicide (feminici-

dio) and femicide (femicidio) in Mexico and Nicaragua, two countries in which

feminists engaged in legal activism to increase state accountability for gen-

dered violence. Through comparative analysis, we demonstrate the impor-

tance of (1) the interaction between shifting local political conditions and

supranational opportunities and (2) the position of feminist actors vis-a

`-vis

the state and its gender regime in shaping regional variation in the making

of laws concerning gendered violence. In Mexico, the criminalization of fem-

inicidio resulted from a successful naming and shaming campaign by local

feminist actors linked to litigation in various supranational arenas, and the

intervention of feminist federal legislators. In Nicaragua, the codification of

femicidio resulted from the state’s selective responsiveness to feminist

demands in a moment of narrow political opportunity within an otherwise

highly consolidated regime. We also examine the unmaking of these laws

through their perversion in practice (Mexico) and their intentional under-

mining (Nicaragua) at the hands of the state. Our analysis demonstrates how

states’ decisions to enact legislation against gendered violence does not occur

solely because they are invested in international legitimacy, but also in

response to states’ shifting acceptance of the legitimacy of supranational

authority itself.

Since 2010, Latin America has witnessed a wave of new laws to

address the murders of women, known as femicide (femicidio)or

feminicide (feminicidio) (MESECVI 2017). Although sometimes

used interchangeably, the terms femicidio and feminicidio are con-

ceptually distinct, with potentially different legal implications.

Femicidio is generally understood as the killing of women by men

based on misogyny (Russell and Radford 1992). Feminicidio

extends this definition emphasizing the state’s complicity in per-

petuating violence against women and its impunity (Fregoso and

Bejarano 2010; Lagarde 2010).

These legal changes can be partly attributed to the diffusion

of human rights norms enshrined in international instruments

like the 1994 Inter-American Convention on the Prevention,

P.G.D.M. and P.N. have equally contributed to this work.

Please direct all correspondence to Paulina Garcı

´a-Del Moral, Department of Sociol-

ogy and Anthropology, University of Guelph, Guelph, ON, N1G 2W1, Canada; e-mail:

pgarciad@uoguelph.ca

Law & Society Review, Volume 53, Number 2 (2019): 452–486

©2018 Law and Society Association. All rights reserved.

452

Punishment and Eradication of Violence against Women

(Bele

´m Do Para

´Convention), which define state responsibility

for gendered violence.

1

The Inter-American human rights sys-

tem has propelled this process by opening up new opportunities

for social movement challenges (Friedman 2009; Htun and Wel-

don 2012; Santos 2007). However, the process by and degree to

which international legal norms concerning gendered violence are

integrated into national contexts varies considerably, even within

Latin America. Because international human rights instruments

do not stipulate how states should implement their terms, they

have been incorporated through various mechanisms, including

constitutional recognition, legislative reform, policy development,

or judicial decisions (Heyns and Viljoen 2002 in Alston and Good-

man 2013: 1049–53), resulting in regional variation in states’ com-

pliance with international treaties (Montoya 2013).

Because human rights have become a symbolic marker of the

“modern” state, both liberal democratic and repressive states ratify

international human rights instruments without necessarily

intending to fully comply with them (Hafner-Burton and Tsutsui

2005; Tsutsui et al. 2012). Given these instruments’ weak enforce-

ment, states make this “empty promise” in pursuit of legitimacy,

which inadvertently opens avenues for social movement actors to

pressure states into complying with them, such as through “nam-

ing and shaming” campaigns (Hafner-Burton and Tsutsui 2005;

Keck and Sikkink 1998). This may be especially so for international

norms on gender equality, which have become a yardstick for mea-

suring states’ “modern” status (Merry 2003, 2006; Towns 2010).

Therefore, the “paradox of empty promises” associated with the

ratification of and compliance with human rights instruments is

premised on the assumption that states’ investment in being per-

ceived as legitimate in the international community can provide

leverage to social movements (Hafner-Burton and Tsutsui 2005).

Yet, we posit that state responsiveness to legal activism/advo-

cacy may also depend on the inverse – that is, how state actors view

the international/regional human rights systems’ legitimacy as arbi-

ters of justice for gendered violence-related claims. Consequently,

the use of similar legal tools and arguments may yield different

results under different political conditions. To more fully under-

stand this variation, we examine the contested lawmaking process

related to the killing of women in Mexico and Nicaragua and their

legislation on feminicidio/femicidio. Our comparative approach

focuses on two analytical factors: (1) the interaction between

1

“Gendered violence” are acts of violence (physical, psychological, or sexual) com-

mitted against women due to their gender, while the structural conditions that disadvan-

tage women constitute “gender violence” (Walsh and Menjı

´var 2016: 7).

Garcı

´a-Del Moral & Neumann 453

shifting local political conditions and supranational opportunities

and (2) the position of feminist actors vis-a

`-vis the state and its gen-

der regime. Building on the literature on human rights law and

feminist activism, we argue that these two dimensions can explain

how and why laws addressing feminicidio/femicidio are made and at

times unmade in different Latin American countries.

Like Boyle (2002; Boyle and Preves 2000), we contend that

the regional diffusion of gendered violence laws occurs via a com-

plex interplay between supranational and local factors. However,

we suggest that global forces do not necessarily outweigh local fac-

tors (Boyle 2002: 8). Paradoxically, our analysis reveals that

depending on local gendered configurations of power, smaller less

powerful states (like Nicaragua) may be more effective than larger

or more powerful ones (like Mexico) in resisting external pressure

to pass feminicidio/femicidio laws. It is not only, as some scholars

suggest, about states’ interest in maintaining their legitimacy

within the international community, but also how the perceived

legitimacy and authority of supranational bodies shapes state

action (or inaction) on feminicidio/femicidio legislation.

Our findings can be summarized thusly: in Mexico, the crimi-

nalization of feminicidio resulted from a successful naming and

shaming campaign by local feminist actors linked to litigation in

various supranational arenas, and the intervention of feminist leg-

islators. Yet, the law’s transformative potential has been perverted

in practice. In Nicaragua, the codification of femicidio resulted

from the state’s selective responsiveness to pressure from femi-

nists and supranational actors. Nevertheless, this legislative

achievement was undone by a conservative religious backlash and

the increased centralization of political power, which rendered

feminist and supranational pressure insufficient to preserve the

law. Thus, we argue for a more nuanced understanding of the

relationship between state legitimacy and human rights that con-

siders evolving sociopolitical conditions and the position of femi-

nists within and outside state institutions. We go beyond the

state’s pursuit of legitimacy as an explanatory factor by interrogat-

ing how international norms on women’s human rights translate

into different kinds of legal change at the local level, focusing on

the understudied Inter-American system.

Gender, Violence, and Juridical Power

The state is a critical actor in maintaining gender regimes, the

institutionalized mechanisms by which gender inequality and vio-

lence are upheld and perpetuated (Walby 2004). We conceive the

state as a historically contingent and fragmented set of actors and

454 Feminicidio/Femicidio Laws in Mexico and Nicaragua