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Fleeing from the public/private distinction


Think the public/private distinction died in the 1960s? Think again.

To date, many states have yet to criminalize gender-based atrocities, such as domestic abuse, within their borders, making it particularly difficult for other parties to intervene. As James Wilets wrote in the Albany Law Review in 1997, many women’s “husbands abuse them and authorities deny help. They are raped or beaten by soldiers who want to terrorize communities or intimidate the women’s politically active husbands … they are abused in the name of custom – arranged marriages, genital mutilation, bride burnings … Unlike the traditional public acts of oppression, many of these practices are performed not by the state, or an invading army, but by the girl’s own family — mothers, aunts, sisters. They have thus been viewed as personal or cultural rather than as political matters warranting asylum.” Treating gender-based persecution as a private issue that the state could not intervene in as long as non-state actors perpetrated the harms, individual states have rarely afforded attention to the gender-based persecution that plagues women around the world.

By recognizing the sovereignty of the family — where most gender-based “crimes” occur — international law cedes authority to regulate the family to the national government. Yet many national governments never exercise this power to intervene in such life-threatening, dehumanizing situations because the authorities are complicit in, indifferent to, or unaware of the situation.

And with international relations and trade agreements on the line, many external states are hesitant to provide a haven for refugees from certain countries out of fear that doing so would undermine their relations with that country’s government. Historically, the United States has been no exception to this rule. For example, the United States repeatedly has to play down its criticism of China’s human rights policies that condone, amongst other things, compulsory abortions and sterilizations. Fearing the political repercussions of a criticized country like China exercising certain powers (i.e. – China’s use of its United Nations Security Council veto or increasing tariffs), the United States has often put its national interest above humanitarian interests. Even if granting asylum to women from another nation does not involve explicit criticism, the act of accepting the refugee exposes either the persecuting government’s involvement in the persecution or its refusal to protect the victim.

But as graphic accounts of female genital mutilation, rape, bride-burning, and compulsory abortions and sterilizations have begun to leak out of many African and Asian nations with the cessation of Cold War politics of secrecy, female refugees have increasingly come into the limelight, gaining some of the attention their tribulations demand. Increased refugee flows from countries like Bosnia and Rwanda, where leadership and sovereignty changed following the Cold War, have made it impossible to overlook genocidal atrocities any longer. Likewise, globalization guarantees the integration and exposure of many countries that might have otherwise remained isolated in order to conceal the patriarchal tyranny within their borders.

While the United States has allowed some women in for gender-based persecution in the last decade, they have found their way into the United States not as a result of specific gender-based guidelines in asylum law but rather because of some other guidelines in that law.

The lack of a specific gender-based persecution guidelines, however, has proven inadequate. And believe it or not, if this changes, women may be able to thank the war on terrorism and the Department of Homeland Security for their newfound refugee status. John Ashcroft, currently considering an appeal from a woman from Guatemala, is now drafting rules to allow women fleeing from rape, mutilation, and other gender-based abuses in other parts of the world to gain refuge in the United States.

I want to be optimistic about this move, though I’ll admit to being a bit skeptical inasmuch as the Bush administration has been anything but benevolent to women’s rights in the United States and abroad. But if the Bush administration is serious about this move and the guarantee of protection from gender-based persecution in asylum law, then perhaps the elements of Bush’s pro-life agenda — i.e. — protecting women from getting beaten to death by their husbands — and his collapse of the public/private distinction to make women’s health the government’s business that resonate in this move demonstrate that there can, in fact, be perks in his ideological agenda. But I suppose only time will tell.

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