3 BIG LOVE: [FN1] IS FEMINIST POLYGAMY AN OXYMORON OR A TRUE POSSIBILITY?

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POSSIBILITY?

Michèle Alexandre [FNa1]

Copyright (c) 2006 UC Hastings College of the Law; Michèle Alexandre

I. INTRODUCTION

As for ourselves, we have been deserving, and our sisters-in-law
sing a chorus of praises chanted at the top of their voices. Our patience before all trials,
the frequency of our gifts find their justification and reward today. Our
sisters-in-law give equal consideration to thirty years and five years
of married life. With the same ease and the same words, they celebrate twelve maternities
and three. [FN2]

For the past few decades, Islamic reformists have attempted to reverse
patriarchal set-ups in Islamic practices. In light of these efforts,
the time is ripe to consider what role women's agency will play in the
implementation of such reforms. The way we account for agency in advocating for *4 women's
rights is an issue with which feminist legal scholars struggle. [FN3] It has been explored
particularly when analyzing women's rights in the area of pornography and
prostitution. As the reform movements in Islamic law become concrete, similar
explorations will have to take place. Agency- driven explorations in
the area of Islamic law will have to be tailored to issues of particular relevance
to Islamic women. In addition, feminist legal scholars will have to take care
not to project a western-based analysis onto unique Islamic settings. Borrowing from
transformative arguments advocated by feminist legal scholars like Martha A.
Fineman, [FN4] the article explores the implications of recognizing the
possibility for agency in Islamic polygamous structures. The central idea is to
analyze the possibility of a feminist based form of polygamy for women
who decide to live in a polygamous structure. This exploration in no way assumes
that Muslim women are solely defined by their religion. On the contrary, it recognizes that
women's identities are so diverse that, even when given options, a
number of them might opt for polygamy rather than monogamy.
In this context, an assessment of the value of monogamy compared to polygamy is irrelevant. What
matters instead is the fact that women who choose polygamy, like those who make any other
legitimate choice, must be protected.

Consider the following scenario: an Islamic woman who has been
married for 25 years suddenly learns that her husband recently married a second wife. Imagine
the pain, distress, and sense of betrayal that this woman feels upon
learning such news. Furthermore, imagine the pragmatic decisions that this woman
must face: To stay or not to stay? If she stays, what will her life as a co-wife be
like? How many times a week will she see her husband? If the co-wives live in the same
house, how will the domestic tasks and the familial and financial
responsibilities be distributed? As depicted in the seminal work, So Long a Letter,
[FN5] women in Islamic polygamist communities routinely grapple with these questions. The
aforementioned scenario is but one of the many situations that might motivate a
woman's decision to live in a polygamous union. Regardless of the reason, the
reality is that in the wake of Islamic reform movements a number of women might
still opt for the controversial institution of polygamy.

Polygamy is a system that is generally viewed as oppressive and degrading for
women. When Islam or polygamy is evoked, one of the most *5 common reactions is
disapproval, or to view these institutions as primitive or unenlightened. Such
dispositions, however, evade the real issue of how to best protect the women who
either choose or accept a polygamous lifestyle. This article invokes
the concept of cultural feminism [FN6] to advocate for both the acceptance of
women's choices and the protection of Muslim women who choose to live in polygamy. While the
context of polygamy is a slight departure from the original notion of cultural
feminism, which juxtaposes men and women, cultural feminism can still serve as a
good paradigm for understanding the motivations, realities, and desires of women
living in polygamous unions.

The rising number of pro-polygamous movements [FN7] indicates that it is
imperative that we investigate the possibilities for a women-centric polygamy.
[FN8] Islamic women have diverse views regarding polygamy; not all view it as
detrimental. [FN9] Muslim women exist who are unequivocally against
polygamy, but want to remain faithful to Islam. There are others who are not against polygamy
but would prefer to reform the practice to fit their needs. The common
denominator between these two groups of women is that they all yearn to have more choice and
control over the decisions that affect their family life. In their eyes, the
desire to enter or remain in a polygamous union does not necessarily
equate with a diminishment of their rights and privileges. For many Islamic women the desire
for autonomy and equal rights is often coexistent with their
commitment to Islam; a combination that, according to popular stereotypes of Islam, creates an
untenable conflict. This Article intends to show that *6 equal rights for women
and the Islamic faith are not necessarily mutually exclusive if the
allocation of rights is based on the spirit of Islam. Furthermore, the Article will demonstrate
that Islam's inherent concern with justice and equality for women requires that
women's desires and wishes serve as a foundation for any system of polygamy.
[FN10] Reconciling Islamic law with the spirit of Islam mandates a
renunciation of the misconceptions about Islamic law, a consideration of the
historical context in which Islam was born and a construction of a women-centric interpretation of
Islamic law.

This Article will also analyze women's narratives and Islamic jurisprudence to
investigate the potential for a women-centric Islamic reformation. The following
questions will be explored to determine whether the system of polygamy
itself can be reformed to be women-centric: What is the goal of polygamy? What
role do women play within this system? What do the sacred texts of Islam say about polygamy?
How is polygamy implemented? Is polygamy's implementation consistent with the
Islamic sacred texts? How does the practice of polygamy in Muslim
states compare to its practice in non-Muslim states? This exploration is divided into
four parts. The first part is a study of classical Islamic law's treatment of women. The
second analyzes women's practice of polygamy as revealed by their narratives in
order to determine its effects on women's lives. The third focuses on alternate
interpretations of the Islamic texts and offers some ideas of possible reforms.
The final part investigates possibilities of coalition building between Muslim and non-Muslim women.

II. TRADITIONAL ISLAMIC LAW'S TREATMENT OF WOMEN

For women in polygamous unions, remaining true to Islam and advocating for more
rights is a difficult balancing act. The ambivalence stems from the patriarchal
interpretations of Islam that have now become law in many Islamic jurisdictions.
Determining one's stance on polygamy is a task faced by many Islamic women of
various social echelons. Reporting on Muslim journalist Shagufta Yaqub's
deliberations about whether or not she would agree to a polygamous union, a
British reporter marveled at the extent of her ambiguity toward polygamy. He reported:

I was startled to hear [journalist Shagufta Yaqub] saying on Radio *7 Four,
that when she got married, she insisted on the right to continue her
education and to initiate a divorce, but "the question of polygamy was more difficult to
resolve. Should I insist that my husband never take another wife? In
the end, I decided to leave the possibility open. If God has allowed polygamy I
thought who am I to challenge it? [FN11] Azizah al-Hibri understands this dilemma
and confirms that the challenge for many Muslims is to determine how "to introduce progress
into their society, while at the same time protecting their deep-seated spiritual
beliefs and cultural identities." [FN12] Advocating for equal rights is
particularly challenging in the context of Islam because, although Islam regulates
all aspects of Muslims' lives, its jurisprudence has generally not yet been
reformed to address the issues specific to modern society. Furthermore, "while
many secular feminists have criticized patriarchal religiously-justified laws in
Muslim countries, many Muslim women have defended Islam as the guarantor par
excellence of women's rights." [FN13] This broad gap among women was partly
explained by some as the result of miscommunication. [FN14] It is important to
keep in mind that most Muslim women tend to be highly religious and
would not want to act in contradiction to their faith. [FN15] Reluctance to enter
into polygamy and a desire to remain true to Islam can be reconciled through a women-centric
interpretation of Islam. To formulate such an interpretation, it is crucial to
understand the foundations of Islamic jurisprudence.

Islam's set of guidelines for living is contained in the Shari'a. The Shari'a
is considered to be a moral, ethical and spiritual guide for Muslims to follow.
It is believed to be divine law. The Shari'a contains three sources: the Qur'an,
the Sunna and the Ijima. The Qur'an, which is believed to be the direct
revelations of God to the Prophet Muhammad, is the primary source of law. [FN16]
The Sunna is the model of behavior from the life of the Prophet Muhammad himself.
The third source, consisting of the living tradition of the Prophet Muhammad's
companions and succeeding generations, is called consensus or Ijima. [FN17] The
Qur'an, considered the *8 absolute authority in Islam, does not, however, provide
solutions to all legal problems. Interestingly, "Islam has no clergy nor does it
have an ecclesiastic structure." [FN18] The Qur'an's content transcended the
customs of the time and came to represent a code of law for Muslims. The Prophet
Muhammad, however, still felt the need to provide additional guidance. Thus, in
his lifetime the Prophet played the role of interpreter of the general provisions
of the Qur'an. His interpretations and other details are assembled in a body of
text called the Sunna. In Islamic theology:

The Arabic verb Sanna means to fashion a thing and produce it as a model . . .
Such exemplary conduct can either be initiated by setting an example or be
drawn from the practice of the forefathers of, say, a tribe or community. As
explained by Fazlur Rahman, the concept has two elements: an alleged historical
fact of conduct and its normativeness for succeeding generations. In the Muslim
context, the concept is explained by another scholar as follows:
'Among the pious successors of Muhammad and in the oldest Muslim community sunna came to mean
anything that could be proven to have been the practice of the Prophet and his
oldest disciples. Just as the pagan Arab adhered to the sunna of his ancestors,
so was the Muslim community enjoined to uphold and follow the new sunna. Thus the
Muslim concept of sunna is a variant of an ancient Arab concept.' [FN19]

Before the second century, there existed no precise manner in which to record
these sayings. Consequently, a great deal of unreliable material was mixed in
with authentic reports until scholars began a critical investigation of
Traditions. There are conflicting views as to whether the Prophet Muhammad
approved of Traditions being recorded in writing. Nonetheless, there is a general
consensus that the Prophet Muhammad stressed that the Qur'an should be the most
important source of law. For many scholars, the characterization of the Qur'an as
a source of law means that the "primary purpose of the Qur'an is to regulate not
the relationship of man with his fellows but his relationship with his creator."
[FN20] Prophet Muhammad stressed very early the importance of using one's
judgment and reasoning when resolving issues.

Ijtihad, which "literally means hard striving and strenuousness, but *9
technically it means exercising independent juristic reasoning," [FN21] is an
important element of Islamic law. In Islamic legal terminology, it means: "to
exert with a view to form an independent judgment on a legal question." [FN22]
The use of judgment is celebrated in Islam. Ijtihad "is based on the rule of logic
as well as on religious text. Each individual has direct access to the Qur'an and
the Hadith and, is in principle, entitled to engage in Ijtihad, so long as she has
the requisite knowledge." [FN23] Ijtihad's importance is stressed in the Qur'an
in verses such as 7:179, 8:22, 25:44, and 29:69. [FN24] The need for the exercise
of "judgment" in decision-making became more pressing after the demise of the
Prophet Muhammad as more regions were being converted to Islam. [FN25] As Islam
evolved, decision-making power was delegated to more followers and the custom of
interpreting the Qur'an and Traditions became more widespread. Unfortunately, as
different schools of thought arose in Islam, a movement began towards a more rigid
application of the law. Fear of Islam's annihilation pushed the jurists to
promote a strict, uniform way of life. With the strict application of law came a
move away from justice and equality and an increase in emphasis on preserving the
status quo. Consequently, earlier jurists began to "incorporate into their logic
patriarchal assumptions not present in the Qur'anic verse itself, such as the
assumption that women are emotional and irrational." [FN26]

Ijtihad is one of the many proofs that the basis for Islamic jurisprudence is
one of fairness and justice rather than repression and injustice. [FN27] Ijtihad
requires that each Muslim use his or her judgment to *10 analyze and evaluate the
verses of the Qur'an for himself or herself and adhere to a way of life consistent
with his or her interpretation. It is interesting that a religion which is often
described as extremist would have such an autonomous foundation. The presence of
Ijtihad in Islamic jurisprudence also indicates that it is possible for Islamic
reforms to remain consistent with the spirit of Islam while championing a fair
application of the law. Modern Muslim women have begun to prove that very fact
through grass roots activism around the world. For example, Azra Nomani described
a group of women who attended a conference on Islamic feminism in the following
manner:

To many, we are the bad girls of Islam. But we are not anti-sharia (Islamic
law) or anti-Islam. We use the fundamentals of Islamic thinking-- the Qur'an, the
Sunnah, or Traditions and sayings of the Prophet Muhammad, and ijtihad, or
independent reasoning--to challenge the ways in which Islam has been distorted by
sharia rulings issued mostly by ultraconservative men. [FN28] Within Ijtihad,
there exists various methods used for problem solving. These include Quiyas
(reasoning by analogy), Istihsan (juristic preference) and Istidal (logic or
reason). These would be great tools to construct innovative decision-making.
Unfortunately, a number of Muslims believe the gates of Ijtihad have remained
closed since the tenth century.

Ijima, or consensus, is defined as an agreement between the jurists who were the
followers of Muhammad on a certain question of law. Different opinions exist
within the schools as to what constitutes a consensus. Some believe that Ijima is
confined to the companions of Muhammad. Others believe that it extends to the
companions' successors as well. It is also in dispute what exactly constitutes an
effective law. Some schools believe that once a consensus is reached on a
specific question of law, it is not to be re-opened unless a jurist of the same
era had a different opinion. Other schools believe that Ijima consisted of the
opinion of the first four Caliphs. No matter what, it would appear that Ijima
requires Ijtihad in order to grow and develop. This is where one encounters
resistance. Since conservative Muslims consider the doors to Ijtihdad to be
closed, they restrain from advocating its use in any law-making. As a
consequence, the Shari'a has been stagnant for centuries. According to experts:

[The] process of Islamization involved the adoption and adaptation of
pre-Islamic norms and institutions of both Arab and non-Arab segments of the
Muslim population. The process of Islamization *11 was slow and protracted
because it was limited by the methods of transportation, communication, and other
technological resources of the seventh and eighth centuries. Nevertheless, it was
a thorough and effective process that set the scene for the development of Shari'a
and the arts and sciences of the Islamic civilization over the next several
centuries. [FN29] Islam, a once evolving jurisprudence, has been stifled because
of the reluctance to use Ijtihad. Hence, according to Islamic experts, Shari'a
has not evolved much since its peak in the eighth and ninth centuries. This
stagnant state is limiting because it has not taken into account the evolution of
time and thus, has not adapted accordingly. Considering the relatively
progressive nature of the Qur'an, the primary source of Islamic law, it is
deplorable that Islamic law has been constrained by international and patriarchal
biases. As stated by Ebrahim Moosa "from its very inception in seventh century
Arabia, the message of Islam demonstrated a preoccupation with the social, moral
and spiritual condition of human beings." [FN30] It is of particular interest,
however, that despite its limitations, some passages of the Qur'an were viewed as
more progressive than the customs existing at the time of Islam's inception. The
Qur'an and the Sunna contain a paradigm of equality that is counter to the notions
that have been implemented by Islamic traditionalists. The protection of women
and respect for women are mantras that are present throughout the Qur'an. For
example, the Qur'anic creation story is one that does not place blame on the woman
alone, but rather states that the man and woman were tempted by Satan. [FN31] In
addition, in the creation story, the woman is not created out of the man's rib.
Ironically, it is in great part this concern for the well-being of women that
originally justified the maintenance of polygamy in Islam. Traditional Islamic
scholars have not given as much weight to this notion of equality of the sexes in
their interpretations of the Shari'a. This is explained by the fact that Islamic
mandates, when created, were in great part a response to the ailments and
conditions existing at the time. It is thus crucial to understand that:

The legislative approach to independent reasoning (al-ijtihad al-tashri'i)
assumes that sufficient consideration and weight be given to changing conditions
and their concomitants in the search for legal solutions. Especially the
conditions of this age in which we *12 live, in particular its complexity,
requires diverse scientific specialties in accordance with the nature of the
circumstances, in order to generate new analyses and explanations. For [these
circumstances] provide new indexes of moral obligation (adilla taklifiyya) that
require new rules of legal reasoning and activity (ahkam ijtihadiyya). Hence,
jurisprudence must relate to reality, with its changing circumstances and
accompanying phenomena. [Jurisprudence] should be contemplated in such a manner
that it affirms its own existence, and also avoids the causes of its weakening,
incoherence and collapse. [FN32] Re-popularizing the use of Ijtihad to address
societal injustices is crucial to furthering a women-centric Islamic reform.
Moosa also contends that:

The rationales underpinning Islamic rights may be derived from reason, a divine order and public interests. The latter category [is] essentially the policy objectives of the revealed law . . . that jurists take into consideration when developing the law. These goals that the shari'a advances are the protection
of religion, life, progeny, intellect and wealth. [FN33] Unfortunately, Islamic
jurists have not followed this mandate and have, instead, championed a limited
application of Islamic law for centuries. Generally, traditional jurists have
refused to apply Ijtihad to reconcile the changing conditions of women and Islamic
precepts. Scholars of Islamic law, such as Azizah al-Hibri and Abdulah Ahmed
An-Na'im, have long denounced the inherent problems present in the modern-day
application of Shari'a. Abdulah Ahmed An-Na'im's Towards an Islamic Reformation
challenges historical Shari'a and proposes that Muslims re-evaluate Shari'a in a
way that allows it to be consistent with constitutional and human rights.
An-Na'im believes that there is a way of maintaining a balance between legitimacy
of the law and progressivism.

This balance is very delicate because "attributing inadequacy" to a rule in
Islam is a sensitive subject. Muslims consider Shari'a to be a set of mandates
obtained directly from God. An-Na'im, however, seems to believe that Islamic law
has always been a matter of interpretation:

Stages of Muslim history reflected continuous fluctuation between greater and
lesser observance of Shari'a in practice. . . . Although Shari'a professes to be
a single whole, there is significant diversity *13 of opinion not only between the
schools but also between jurists of the same school. . . . Because all the
divergent and sometimes conflicting views are regarded as equally valid and
legitimate, any Muslim has the choice of taking whatever view is acceptable to his
or her individual conscience. [FN34] Consequently, an Islamic reform movement
should build on this interpretative history and promote an educational component
designed to educate the public as to the relationship between historical context
and religious dogma. Only with such a deliberate educational effort might we
begin to erode the patriarchal steadfastness of archaic Islamic interpretations.

Numerous examples can serve to illustrate how the Shari'a's patriarchal
interpretations present oppressive, nefarious consequences for women. The
Shari'a's penal code thoroughly discriminates against women. For example,
monetary compensation paid to surviving blood relatives of a murdered female is
less than that paid for the killing of a male. Additionally, some scholars
believe that women lack the capacity to contract. Lastly, Muslim men are often
granted the right to give a "talaq" [FN35] for any reason while women have to
undergo lengthy procedures to divorce their husbands. These few examples make
painfully clear the fact that the Islamic texts have been interpreted in a
gender-biased fashion. These oppressive applications of the sacred texts have
deviated from the spirit of change and progress with which Islam was created.

III. WOMEN'S NARRATIVES OF THEIR EXPERIENCE OF LIFE IN POLYGAMY

Muslim women have voiced their discontent in fictional literature (e.g., Miriama
Ba's So Long a Letter) as well as in written sociological studies done on the
institution of polygamy. In La Femme De Mon Mari [FN36] by Sylvie Faizang and
Odile Jounet, women's individual narratives make it clear that, while they resign
themselves to polygamy, they do not like it. This is the reason women try to
adopt the protection of a monogamous contract as soon as they are able to do so.
In America, many Muslim women, at the onset, chose to signify to their husbands
that polygamy is not an option and that if they ever chose to violate their
contract, they will *14 divorce them. Felicia, [FN37] a young Muslim woman who
grew up in a Muslim community in the United States, recently described the uproar
that arose in her community when a number of the men decided to take second wives.
Her account shows that while some women resign themselves or willingly accept
polygamy, there is a strong resistance to polygamy among women. As women move to
the urban areas where polygamy is less practical and more expensive, this
resistance becomes more evident. In the rural areas, polygamous families often
live in large houses where each co-wife and her children have an independent space
of their own. As they move to the city, polygamy becomes less practical because
the man has to keep each wife in a separate house, incurring much more expense.

When Muslims move to non-Muslim states, the situation is even more strained.
The husband shares a small space with his wives and children. Everyone suffers
from a lack of privacy, and the rivalry between the co-wives is exacerbated.
Alternatively, a more established husband might separate his families into
individual households. The result of this set-up is that each family only spends
a limited amount of time with the husband. This situation often creates
unhappiness and resentment. Consequently, as Muslim women become more
self-sufficient, they begin to rebel against the system. The fact that they often
migrate to countries that do not condone polygamy, like the United States or
France, also contributes to this change in women's attitudes.

A great number of arguments are constantly put forth to justify the maintenance
of polygamy. While these justifications are provided mostly by men, a number of
women have begun to champion them as well. The first justification is that
polygamy serves as a way of protecting women and making sure they do not turn to
prostitution or become completely destitute. The second justification states that
polygamy allows for the creation of a large number of workers that make familial
duties more efficient and economical. The assumption here is that sexual
relations with more than one woman increases the man's ability to procreate. In
other words, the more wives and children, the cheaper the workforce. Finally, it
is argued that polygamy is a way to remedy a man's sexual frustrations when women
are seen as unable to participate in sexual relations, such as when they are
menstruating or breastfeeding.

None of these justifications, however, place the needs of Muslim women at the
center. On the contrary, the primary concern seems to be with the men's
convenience at the expense of women. In addition, polygamy fosters an unhealthy
competition between women. Many texts refer to the fact that men maintain their
dominion by fostering rivalry between co-wives. In Miriama Ba's fictional works,
for example, the young co-wife, being insecure about her situation, forbade her
husband to *15 visit his first wife. [FN38] In this instance, the taking of a
co-wife resulted in the complete devotion to the first one. The rivalry stems
from the desire of each wife to be the preferred wife. [FN39] According to the
narratives extracted from Faizang and Jounet's study in Senegal, the arrival of a
co-wife is often a painful experience. [FN40] Sexual competitions often occur
among the women vying for the polygamous husband's attention. [FN41] According to
Islamic law, each wife has to wait her turn to share her husband's bed. Depending
on the number of wives, a woman's turn may come up two or three times a week.
Only in the first week of marriage to a woman is the husband allowed to spend more
than one night with her; he is allowed to spend seven nights with her if it is her
first marriage and three if it is not. [FN42] Otherwise, he must
conform strictly to the system of turns. [FN43] If he fails to do so, the wife who is being
neglected can leave her husband on the basis of unequal treatment.
Unfortunately, many women do not take these measures for fear of public humiliation. [FN44]

Instead, they might resign themselves to living in a tense
atmosphere where all types of subterfuge are used to obtain the favors of the husband. The children
also suffer from these rivalries because a co-wife often might be ill-disposed
toward the children of a rival and might treat them in a harsh manner. A woman
who is suspected of having slept with the husband out of turn will be
labeled as a "night thief" and her child considered a "bastard." [FN45] Many of
these disputes regarding turns happen at the occasion of a husband pretending to forget which
wife he is scheduled to sleep with.

The situation becomes even more painful as the woman grows older.
There are husbands who completely abandon their wives when [they] get
older. They do not even spend the night with them anymore. These wives are
miserable but they do not say anything. If they have children they stay. They
wait until the children grow up and are able to earn a living. Then they are
happy. [FN46] *16 A husband's neglect of his older wives is a common story that
seems to disprove the rationale that polygamy is designed to protect
the interests of women.

The threat of obtaining a second wife is often used by husbands as a blackmail
device. Even the men who identify themselves as favorable to monogamy
will trick their wives into signing a contract permitting polygamy. Some women explain that
after having obtained the promise of a monogamous marriage, they find themselves
obligated to sign a contract with the polygamous option on their wedding day.
Pressured by their family and afraid of a scandal, they sign the contract
reluctantly. [FN47] Women feel that if they marry under a monogamist
system, they are freer to speak their minds without fear of displeasing their husband.
Ironically, that is one of the reasons men prefer marrying under a polygamist
regime. Under a polygamist system, the husband can always threaten to take a
second wife if the current wife disobeys. Thus, a monogamist contract is never
guaranteed. Many women find themselves with a co-wife even after insisting on a
monogamist contract. On that occasion, the wife's only option is to divorce her
husband or resign herself to the situation. In addition, in countries like
Senegal, the monogamist contract is temporary because it can be revised every
seven or eight years. While the dynamics of a polygamist family are challenged
when the family moves to non-Muslim soil, coping mechanisms are developed to
maintain the same family structure as in the motherland. Spatial and financial
issues are the main challenges that polygamist families face. The modifications
engendered in the daily life of polygamous families in the immigration
context are enough to shake the foundations of the institution of polygamy.

The first challenge to polygamy lies in the fact that immigration
often results in a shift of authority in the family. On foreign soil, women become more aware
of the importance of education in order to attain financial
independence. Women's education becomes necessary to the survival of the family. As it is often
necessary for more than one person to work, women have to learn the language of
their host country, thus opening themselves up to ways of life and mentalities
that are different from their own. As they become more educated, they
become more willing and apt to challenge the system of polygamy. In such situations, it
becomes more *17 common for women to attempt means of contraception in order to
pursue an education. Thus, their life is no longer limited to having a great
number of children. However, the use of contraception is often against their
husband's will. The value system also changes as women no longer measure their
status by number of children or rank as first wife. Instead, the measure of
success is based on the level of schooling and the degree of autonomy that one
possesses.

The move to foreign soil often inverts the familial hierarchy.
Often times, the wife that arrives first will be the one with the most authority in the immigrant
family. The order of arrival in France, for example, does not always follow the
order of marriage and often times the husband will send for his latest and
youngest wife before the older ones. As a result, the older wives, once finally
in France, find themselves in a position where they are dependent on the younger
one who is more familiar with the language and the ins and outs of the foreign
land. The wife who is more fluent in French and more educated will be the one
making the most decisions, especially in financial and administrative matters.
When the husband is absent, she might find herself in charge of the
family and she also might be the one who receives the monthly social security pension
awarded by the French government. This situation is a particularly frustrating one for the
first wife who is robbed of all her means of valorization. As reproduction
becomes less important than an education and financial independence, the first
wife finds herself more prone to rebelling against the polygamist structure
altogether. Although men try to maintain the same system when they move to a
non-Muslim country, the changes that occur are inevitable. Nonetheless, for
Muslim women who try to stay true to their religion, independence remains a
distant concept when the jurisprudence does not openly ratify their search for
better treatment. For women in a polygamous union the inequities resulting from
the current constraints under Islamic law mandate that alternative methods
addressing women's needs be implemented.

IV. CONSIDERATION OF REFORM PROPOSALS

A. Role of Islamic Jurisprudence in the Formulation of Reform Proposals

Despite the increasing presence of Islamic reform movements,
traditional Islamic scholars have been quite opposed to the potential of reforms. The
first objection stems from the belief held by many Muslims that Islamic law is divine.
The first obstacle any reformer must surmount is that one should not follow Muslim texts
literally. In circumventing this obstacle, one must show that the
Qur'an stemmed from Muhammad's *18 desire to advance justice. An initial step would be to show
that the Qur'an (the highest source of law in Islam) is solely the Prophet
Muhammad's attempt at organizing a just and civil society. The Qur'an contains
recommendations for living first and foremost; rarely does it deal with the
possible consequences of any actions, or of disobedience of a law.
The Qur'an was an answer to the problems of the time. Throughout his recommendations,
the Prophet attempted to elevate human interactions to a level where people would take into
account notions of justice and equality. [FN48]Any reformative attempt
on polygamy must establish that the Qur'an is a set of recommendations for a more just
society. While the spirit of the Qur'an is that of fairness, some of
the details were influenced by their sociological circumstances. In the Qur'an, the Prophet
was attempting to find solutions to the more immediate problems of his time.
Among these problems were the deplorable conditions of women and the abuses they
suffered. While one cannot act like the ostrich and purposely ignore the
inequitable verses in the Qur'an, it would be unproductive to adopt them blindly
without putting them into perspective. An-Na'im proposes the following
reformation tactic in resolving this dilemma:

A new principle of interpretation has to be employed for polygamy to be
legally restricted and for men and women to have absolute parity by law. This
principle in my view is the evolutionary principle proposed by Ustadah
Mahmoud. According to this principle, the exception under verse 4:129
was made to permit the practice of polygamy, which was necessary at that stage. In the
historical context of Shari'a, women were dependent on their men for their
security and economic well being. Since men were in short supply because of the
ravages of war in the seventh century, it was better for a woman to share a
husband with other co-wives than to remain a destitute and defenseless spinster.
Similarly, the part of verse 2:228 to the effect that men have a degree of
advantage over women has to be seen in historical context. Although that degree
was reflected in the legal status of men and women in the previous context, it
should have no legal consequences in the modern context. [FN49] This
interpretation would help reconcile the tension existing in the
Qur'an, as well as help promote equality of treatment between men and women.

First, in order to construct Islamic law that takes into account the
constitutional rights of all its citizens, the rigid application of
texts must give way to understanding the circumstances that generated these texts and a
development of systems that are more suited to the circumstances of the current
times. By the same token, a just application of Islamic precepts
should defer to the specific needs and desires of Muslim women.

Second, many modern Muslims try to justify these ancient laws by citing
sociological and historical justifications for them. However, the
acknowledgement of the role that these factors played in the making of the law should
not stop us from evaluating its application with respect to changing times. If the laws are
not re-evaluated and revised, Shari'a's inequalities will not be remedied. To
those who prefer the old laws, it is important to remind them that: "although
slavery may have been accepted as justifiable in the past no one would
claim that it is now." [FN50] Thus, progressive Muslims should advocate for a
way to reform Islamic law to include prevailing notions of fairness, justice, and
reasonableness.

The third reason Muslims reject reforms is that they fear that such
reform will undermine the legitimacy of Islamic law. While this fear is understandable, it
should not consume us to the point of inaction. The first step of any
reformation movement should be to examine the origins and sources of a law and determine
whether the law still applies. Without departing from the foundations of Islam
one can use techniques such as reasoning by analogy (Qiyas) and applying the use
of judgment (Ijtihdad) to insure the protection of women and advance the goal of
equality espoused in the Qur'an. This process is similar to that used by the
Prophet himself when formulating the precepts he deemed appropriate for a just
society. In other words, one should judge a particular situation using Ijtihad
(reasoning) and evaluate the context in which the situation arose to determine
what the particular outcome should be. A profound concern for reaching
the result that would be most just in light of changing times should be the
guiding standard. Using this principle, Muslims will be able to remain consistent with the
theological basis of Islam while, at the same time, reforming the
unequal aspects of it.

It is possible that an analysis of Islamic law would lead us to the conclusion
that Islam bans polygamy. Such a conclusion should not scare or alarm
us as it is not contrary to the foundations of Islam. Judging from the Qur'an, it is clear
that Islam's notions of fairness and justice touch and concern all aspects of
life. Scholars have proposed that some of the verses in the Qur'an go so far as
to abolish polygamy. These proposals stem from the contradictions that seem to
exist between the verses. While on the one hand, verse Q.4:3 seems to present
polygamy as being conditioned on one's ability to establish justice among
co-wives, on the other hand, Q.4:129 states: "you will never be able to be fair
and just between women (co-*20 wives), even if it is your ardent desire." [FN51]
Q.4:129 continues on to say: "But do not turn away completely [from one of your
wives] so as to leave her [as it were] hanging in the air. God is Oft-forgiving,
Most Merciful." [FN52] The jurisprudential rule that each Islamic
verse should be read in relation to the others is instrumental here. The Prophet,
while accepting that polygamy could not be eradicated overnight, expressed serious doubts as to
its practice in a just society. Verse Q.4:129 implies that polygamy can never
render justice, and it seems that he challenges Islamic society to at least
evaluate the system objectively. Thus, we see that this verse is more of an
acceptance of man's weakness and a recommendation that he do his best,
rather than a condemnation of the system of polygamy.

In the verse commonly known as "Quarama" (Q.4:34), we see that man's guardianship
of women arises out of an obligation to take care of them. They are expected to use their
resources to support women. In addition, verse Q.2:228 admits that women have rights
equivalent to those of men, but still states thatmen have "a degree of [advantage over them].
" [FN53] The tension between establishing justice for women and still allowing men's
dominion over them is present in a number of places in the Qur'an. Some scholars have dealt
with these inconsistencies by emphasizing some parts of the Qur'an and ignoring the rest.
This tactic is bound to fail because it can always be weakened by contradictory
verses present in the Qur'an. Others, like Azizah al-Hibri, [FN54] argue that
this verse is only another example of the Prophet's attempt to providethe maximum
protection for women. For example, not only are they to receive an income upon
marriage, [FN55] but the Qur'an also requires that a woman's income be used only
by her. This interpretation is viewed by al-Hibri as consistent with the Prophet
providing alternative methods to discipline one's wife (such as throwing a handful
of grass at her, rather than recommending that she be beaten). [FN56] The
assumption here is that, over time, the Prophet would have gone from recommending
light gestures such as throwing a handful of grass to forbidding physical abuse of
women completely. [FN57]

Even if the Qur'an does not outwardly ban polygamy, there are indications that
many of the Prophet's rules were inspired by women's sufferings and realities of
the time. The same standard should be applied to determine if the practice of
polygamy is appropriate. If it is deemed *21 inappropriate, it must be based on
women's desires and on the measure of injustice that is carried out against women
when maintaining a polygamous system. Similarly, if it is deemed appropriate, it
should be maintained according to women's wishes, desires and rules that will
render justice to them. The Qur'anic language is one that is objective and
inclusive of both genders. Both men and women have to follow the same rules in
order to live a pious life.

One only needs to look at various Hadiths (sayings excerpted from the Sunna) to
understand that the Prophet was dedicated to fairness and justice not only in
theory, but in his life as well. It is reported that the Prophet did not hesitate
to acknowledge the part that women's contributions played in his mission. Some
women played a more crucial role in the Prophet's life than males. For example,
the first person who believed in him was a woman, his first wife, Hazarat Khadija.
She believed in him and defended him from disbelievers. She also consoled and
reassured him when faced with rejection in the early times of his mission. All
this evidence tends to show that Islam was founded on a basis of
open-mindedness.

That being the case, Islamic application still has a lot of room for growth if
it is to become as just as envisioned by the Prophet Muhammad. At the inception
of Islam, the Prophet was preoccupied with making sure there was an organized and
disciplined society. Some people even argue that the Prophet meant to restrict
polygamy to orphans and to women who were most in need of protection. [FN58]
Thus, we see here an eminent concern that everyone in society should be nurtured.
However, while this concern is a noble one, we can attest that the methods of
achieving its goal no longer apply. Just as the Prophet frowned on infanticide
and an abusive form of polygamy at the inception of Islam, his sense of justice
would not agree with the current practice of polygamy.

Since many systems, such as slavery, have now been re-evaluated and considered
unjust, the practice of polygamy should be placed under the same scrutiny. This
evaluation, however, must be conducted from the perspective of Muslim women who
should be included in the process of reforming the laws. It is interesting to
note that the system of polygamy does not originate with Islam. As Shalmat Ali
explains: "it is essential to understand that Muhammad did not introduce polygamy
into his legal system as is commonly and conveniently believed. He found himself
amidst a system where polygamy was a common feature not only among the Arabs but
the Persians and the Jews as well." [FN59] Even some of the most important
figures of Christianity held degrading views of women and favored polygamy.
According to Worsley Boden, even St. Augustine "put *22 polygamy and prostitution
in the same category with marriage and figured them as being as necessary to a man
as a sewer to his palace." [FN60] The position of women in all cultures was an
inferior one. In pre-Islamic Arabic culture, infanticide was a popular custom. It
is said that:

When a child girl was born the house became a house of mourning. The face of
the father was darkened by intense sorrow. He hid himself on account of
shame. The tribes of Muzir, Khaza'a and Tameem buried their daughters alive
fearing that they might be sought in marriage by persons belonging to different
tribes or brotherhood of lower status or that poverty overtake them. It was
customary with them that when the girl child was six years' old the father would
dig a pit, and order the child's mother to bathe and clothe her in beautiful
raiments. He would then take her with him and push her inside the pit and bury
her in it. Sometimes girls were strangulated mercilessly. [FN61]

Verses 17:31, 6:152, 16:58, 59 and 47:l7 of the Qur'an are direct responses to
these practices. The Qur'an also addresses other issues affecting women at the
time. It allows for the remarriage of widows. Prior to Islam, widows were taken
as property with the inheritance left by the deceased. In addition, it creates
marital laws where women are given a certain amount of respect and protocol.
According to Justice Aftab Hussain, "Islam placed the woman on a high pedestal and
engendered in the hearts of her parents sentiments of love, affection, mercy and
sacrifice." [FN62] Relative to the culture of the time, the Qur'an made great
strides in attempting to come up with a system designed to prevent injustices
towards women. In addition, there is evidence in the Qur'an that restricted
living was seen as a way to still provide protection for women and children who
were left poor and abandoned after their husband, brother, or father went to war.
[FN63] Muhammad was concerned with insuring that women were not abandoned to
poverty. [FN64] At the time, there was a shortage of men due to wars and a
feeling that women needed protection. Women and orphans, especially young girls,
were left without protection and Muhammad wanted to remedy the situation.
[FN65]

It is clear that Prophet Muhammad took already existing practices in his
community and provided new protections for women. When discussing *23 the
situation of women, the Qur'an stresses the importance of just and equal
treatment. The Prophet was concerned that women were not left destitute and
treated in ill and unjust manners. In one of the most famous verses regarding
women and marriage (Q.4:3) this concern is evident: "And if you fear that you
cannot act equitably towards orphans, then marry such women as seem good to you,
two and three and four; but if your fear that you will not do justice (between
them), then (marry) only one . . . ." [FN66] This verse has served as a symbol of
the Prophet's support and recommendation of polygamy. Moreover, it is seen as
evidence of the Prophet's fear that some women would not be treated equally.
Social concern and eagerness to find ways to remedy inequality permeate this
verse. The Prophet Muhammad was concerned with the stability of family units and
wanted to insure that everyone received proper care. Primarily, the Prophet was
concerned with the administration of justice. For example, verse Q.4:3 limits the
exercise of polygamy if it is practiced unjustly. Considering the limitation of
his times, Prophet Muhammad could be seen as a pioneer in addressing human
rights issues:

Muhammad introduced rights and privileges for women that other legal systems
voluntarily adopted with the influx of time. He insisted on perfect equality
between the sexes in the exercise of all legal powers and functions. He
restrained polygamy by limiting and insisting on Adl (justice) not only in the
form of physical requisites and domestic comforts but also in matters of respect
and love, thereby giving a completely new outlook to the degraded status of women.
[FN67] Prophet Muhammad's work in human rights should be understood in the context
of the extreme circumstances that existed in his time. The marital laws are a
perfect example of Muhammad's attempt to incorporate the notion of equality within
the legislative system. For example, Islam is the only religion that specifically
allows women to work and fend for themselves. Q.4:32 states: "And do not covet
that by which Allah has made some of you excel others; men shall have the benefit
of what they earn and women shall have the benefit of what they can earn . . . ."
[FN68] These words are interpreted as permission for women to earn a living on
their own, [FN69] and more importantly, it forbids men from appropriating women's
*24 earnings. The desire to protect traditionally vulnerable groups also explains
the Qur'an's emphasis on orphans, especially female orphans.

It is not unusual for a historical figure to be influenced by the common practices of his times.

What is unusual and laudable, however, is that the
Prophet Muhammad directly countered these practices and tried to elevate his community in order to embrace notions of gender equality. At the time, polygamy
was in existence and women faced great injustices without any legal recourse. In
the Qur'an and the Sunna, the Prophet tried to encourage a system that would
insure that women would be protected and would not be left destitute and poor. At
the very least, applications and interpretations of Islamic texts
should maintain the work begun by the Prophet.

B. Specific Examples of Reforms

Many anti-polygamy groups have emerged over the past few decades. These groups
have argued that polygamy is no longer applicable to the present time and should
be abolished. They assert that, while polygamy might have been necessary in
seventh and eighth century Arabia, it is no longer justified and creates more harm
than good. Going along with that rationale, a few countries have used Ijtihad to
abolish polygamy. Tunisia and Morocco are among these few. The reformers in
Tunisia based their decision on the Qur'anic provision that required that co-wives
be treated with complete impartiality. They reasoned that the Qur'anic verse
should be treated as a legal condition to polygamy. Thus, it was decided that no
man should be granted permission unless he showed adequate evidence that his wives
would be treated with impartiality. The reformers declared that under modern
social and economic conditions, such impartial treatment was practically
impossible. In short, there was an irrefutable presumption that the essential
condition for polygamy was incapable of fulfillment. Polygamy, therefore, was
prohibited outright.

The abolishment of polygamy in Tunisia is a result of religious interpretation
as reflected in their 1957 Law of Personal Status. Tunisia belongs to the
category of Islamic countries that tried to create a compromise between abandoning
classical Islamic law and adopting secular law. They did not limit themselves to
their own school of thought. Instead, they sampled different schools while
incorporating modern interpretations. Hence, such reforms, which were regulatory
and substantive or both, might specify a variant doctrine as advocated by some
other school or jurist instead of enforcing the dominant Hanafi doctrine in every
case. This technique has been successful in prohibiting polygamy and restricting
a husband's unfettered right to divorce. In addition, there exists no
conflict of which school of thought to follow.

However, many of the reform movements are limited, and many other *25 countries
have refused to deviate from a strict application of classical Shari'a. Thus, in
general, Islamic family law is dominated by traditional jurisprudence. According to An-Na'im:

The human rights of Muslim women have been directly and continuously affected
within the family by Shari'a, because its relevant aspects have remained in force
under the legal systems of the vast majority of Muslim countries. This control
which Shari'a exercises over the private realm of the home and family is so
entrenched, and its violation of human rights so clear, that it may explain in
part why some Muslim countries refuse to ratify the relevant human rights
instruments or at least enter reservations on their obligations under certain
human rights treaties. [FN70]

 

This statement illustrates the importance of interpreting the Shari'a in a way
that demonstrates its compliance with Islamic law, while providing
more rights to women.

Of the 43 Muslim countries, only two have enacted full reforms of the marriage
laws. These two countries are Morocco and Tunisia. There are over 21 countries
with majority Muslim populations who have not enacted any reformations. [FN71]
Other Muslim countries, such as Pakistan, have enacted codes of law that partly
reform Islamic law in the country. The *26 Muslim Family Law Ordinance of 1961 in
Pakistan requires a man who desires a second marriage, while already married, to
obtain the written permission of an arbitration council and possibly the consent
of the existing wife as well. [FN72] Failure to obtain such permission would
result in statutory fines, such as imprisonment of up to a year. The ordinance
went so far as to consider null the husband's repudiation of his wife when done
without a court's consent. While this is considered a rather progressive view
relative to Islamic reform movements, it still does not go so far as to confer
equal rights to both the husband and wife. In its application, the arbitration
council only requires notice to the wife and the chairman of the council.

All Islamic reform should be centered around the "jurisprudential rule that
'verses in the Qur'an explain each other,' i.e. the Qur'an is an integral whole,
thus the full and proper meaning of any verse cannot be understood in isolation
from other verses in the Qur'an." [FN73] This means that Islamic rules must
provide for the protection of women who choose to be in polygamous unions in a
manner that is satisfactory to women and have their best interests as the primary
goal. Unfortunately, this concern for the equality of women was not sustained
after the death of the Prophet. There is now a great disparity between the ideal
set by the Prophet and the actual application of polygamy. The warning against
practicing polygamy unfairly is overlooked, as the system of polygamy often only
serves to satisfy men's whims and sexual desires.

Potential Islamic reforms should explore the possibilities of a women-centric
polygamy and should advocate for the enactment of legal safeguards for those who
are practicing polygamy. A women-centric form of polygamy is a system where all
the decisions are made by, and for the benefit, of the women involved. All
marriage contracts should include the terms by which a male spouse might be
allowed to marry one or more additional wives. In addition, all potential
co-wives should negotiate among themselves the terms of the partnership without
any influence or coercion from the male spouse. A women-centric form of polygamy
should also grant each co-wife the unilateral right to divorce. Finally, any
equitable form of polygamy should allow for the possibility of polyandry and must
set up safeguards for the physical and emotional protection of all the parties
involved.

*27 V. POTENTIAL FOR COALITION-BUILDING BETWEEN MUSLIM AND NON-MUSLIM WOMEN

Islamic reform movements [FN74] would be strengthened by coalition-building
between Muslim women in Islamic jurisdictions, Muslim women in non-Muslim states
and non-Muslim women. Until now, the dialogue between Muslim and non-Muslim women
has been superficial at best. This is in part due to the fact that western women
have generally been quite judgmental of the Islamic way of life. When faced with
the inequities experienced by Muslim women within Islam, western feminism
traditionally views Islam as destructive to women and generally advocates
secularism as the only way to right these inequities. However, "[I]t is important
to keep in mind that most Muslim women tend to be highly religious and would not
want to act in contradiction to their faith." [FN75] The aforementioned
traditional feminist view assumes that all Muslim women would be willing to rid
themselves of Islam once they are exposed to secular ethics. Furthermore, this
view fails to take into account the dedication of certain Muslim women to their
faith.

Promoting a solution that eradicates Islam has alienated Muslim women from
non-Muslims and, over time, has increased the miscommunication between the two
groups. What then is the solution? Should non-Muslim women merely tend to their
own affairs and abstain from dialogue with Muslim women? Azizah al-Hibri argues
that:

The majority of Muslim women who are attached to their religion will not be
liberated through the use of a secular approach imposed from the outside by
international bodies or from above by undemocratic governments. The only way to
resolve the conflicts of these women and remove their fear of pursuing rich and
fruitful lives is to build a solid Muslim feminist jurisprudential basis which
clearly shows that Islam not only does not deprive them of their rights, but in
fact demands these rights for them. [FN76] *28 In this era of international
hostility and suspicion towards all that is Muslim, finding means to open the
dialogue between Muslim and non-Muslim women would not only be beneficial, but is
necessary. Misplaced suspicion towards Muslims and fear of terrorism has
relegated each side to their respective corners.

The struggle for women's rights must be fought internationally as well as
nationally. Technological advances have revealed immense possibilities for an
international feminist discourse. Women around the world can now transcend their
geographical boundaries in search of solutions to their respective problems.
However, this dialogue can only be fruitful if the cultural differences among
women are acknowledged and understood. Thus, an international feminist discourse
should expand beyond western standards and refrain from imposing homogeneous
feminist views upon the world.

While past reform efforts are noteworthy, all Muslim states must be challenged
to operate a full reform where the interests of women are completely protected and
furthered. It is important to recall that many of the past reforms were enacted
in the 1950s and may be in need of serious revisions. If we base ourselves on the
Qur'anic premise that women have the same rights as men, then we should also
accept the conclusion that women should benefit from the same growing
opportunities that are offered to men through the advent of progress and changing
times. Using Ijtihad, one can infer that if the Prophet had such concerns for the
well-being of women and wanted to protect their interests in the sixth century, he
would probably agree with the need for reforms today in the face of changing
times.

The potential for international coalition building among women has been made a
reality by the work of diverse grassroots activists. Azra Nomani encapsulates the
immense possibilities contained in international feminist coalition building when
she describes the work she and other Muslim feminists have done together:

The force of our collective effort convinced me that we have the strength to
challenge the men's club that defines most of the Muslim world. It was an
affirmation of the commitment that had brought me and the [eleven] other
participants here from as far away as Malaysia, Mali, Nigeria, France, Canada, the
United Kingdom, the United States and refugee camps in the disputed territory of
Western Sahara to share stories from the trenches in the "gender jihad." We
Muslim feminists view it as a struggle that taps Islamic theology, thinking and
history to reclaim rights granted to women by Islam at its birth but erased by
manmade rules and tribal traditions masquerading as divine law. In the *29
communities where we live, we have begun challenging customs that deny women
rights from the mosque to the bedroom: gender segregation, mandatory veiling,
forced early marriages, clitorectomies, polygamy, death for sex outside of
marriage, domestic violence and strict domestic roles. [FN77] Muslim women's
efforts at obtaining more legal rights are being heard internationally and are
progressively bearing fruit. Even the business community has taken notice and
companies have started to provide economic support to these grassroots women's
groups. [FN78] Keenly aware of the importance of international alliance, these
women are looking across geographical boundaries for support. For example:

[F]rom Malaysia, Zainah Anwar, executive director of the Sisters in Islam
(dubbed "Satan in Islam" by conservatives) . . . [and Sisters in Islam are]
calling Moroccan legal experts to Malaysia next February to educate local leaders
about the progressive family reforms that Morocco passed last year. This month,
Anwar and other Sisters in Islam leaders will go to England to swap strategies
with [ten] Muslim women's groups. [FN79] Feminist activists must take advantage of
this momentum and international advocacy to promote the protection of women who
choose polygamy, even if that choice is contrary to the mainstream anti-polygamy
sentiment.


VI. CONCLUSION

As seen in Tunisia, it is not a far-fetched conclusion to say that polygamy is no
longer necessary or applicable to Islam. As evidenced in Christianity and
other religions, with the evolution of time many aspects of cultural life have to
change to leave room for a more suitable way of life. It used to be common for
men to marry very young girls and, as it is mentioned in the Bible, people used to
marry their cousins and other close members of their family. As times have
changed, these practices have grown to be viewed as archaic and inappropriate.
Prophet Muhammad was aware of his own limitations and wanted individuals to use
reason in making decisions about life and changing circumstances. It is evident
in his emphasis on the use of judgment that Prophet Muhammad would not have wanted
a close-minded interpretation of Islamic law. Similarly, *30 Prophet Muhammad
would have wanted his methods of reasoning to be used to address the needs of
those placed in unjust situations, such as those experienced by women in
non-women-centric polygamous unions.

Regardless of one's personal view of polygamy, there is a need for the
empowerment and protection of women within that system. Reforming Islamic
marriage laws has to go further than requiring the man to ask permission before
taking a second wife, and should go further than enacting laws that ask for
written notice of any repudiation of women. If polygamy is to exist, it should be
done in a setting where women are consistently empowered in their daily lives and
given full access to all aspects of the culture. Women should be able to decide
for themselves whether polygamy is appropriate for them and not feel that they
have to accept oppressive patriarchal terms.

[FNa1]. B.A. Colgate University, J.D. Harvard Law School. Michele Alexandre is an
Assistant Professor of Law at The University of Memphis Cecil C. Humphreys School
of Law. This article was funded in part by a research stipend from The University
of Memphis Cecil C. Humphreys School of Law. This article gained much from a
presentation at the Summer Research Institute sponsored by De Paul University
School of Law. The author thanks Jacquelyn L. Bridgeman, Pamela Bridegewater,
Martha A. Fineman, Michele Goodwin, Martha Minow, Camille Nelson, Angela
Onwuachi-Willig, Imani Perry and Ruqaiijah Yearby for their comments and support.
The article also benefited greatly from its presentation at a workshop, sponsored
by the Feminism and Legal Theory Project, entitled: All in The Family? Islam,
Women and Human Rights. The author also thanks her research assistant, Ms.
Vanessa Cross.

[FN1]. This term is borrowed from HBO's new series about a polygamous family
involving one man and three wives with three different households. HBO: Big Love
- About the Show, http://www.hbo.com/biglove/about/index.html (last visited Aug.
29, 2006)

[FN2]. Miriama Ba, So Long A Letter 4 (Modupe Bode-Thomas trans., Heinemann 1981)
(the narrator, Ramatoulaye, recounts the treatment she and her co-wife received
from her sisters-in-law at the death of her husband).

[FN3]. See generally Sex Work: Writings by Women in the Sex Industry (Priscilla
Alexander & Frederique Delacoste eds., Cleis Press 1987); Andrea Dworkin, Against
the Male Flood: Censorship, Pornography and Equality, 8 Harv. Women's L.J. 1, 1-29
(1985); Gail Pheterson, A Vindication of the Rights of Whores 1 (The Seal Press
1989).

[FN4]. Martha Fineman, The Neutered Mother, The Sexual Family, and Other
Twentieth-Century Tragedies (Routledge 1995).

[FN5]. Ba, supra note 2.

[FN6]. Cultural feminism is generally "an approach that seeks to improve the
position of women in the profession through legal and social strategies which
validate women's differences from men." Women and The Law 57 (Judith G.
Greenberg, Martha L. Minow & Dorothy E. Roberts eds., 2d ed. 1998). Cultural
feminism is often associated with scholars such as Carol Gilligan.

[FN7]. See Pro-polygamy.com, 'Polygamy Rights' Movement Not Re-Defined by
Homosexuals, Mar. 31, 2006, available at
http://www.pro-polygamy.com/articles.php?news=0040 (last visited Nov. 6, 2006)
(discussion of pro-polygamy movements in the United States. In addition, there
has been recent media coverage, on CNN's Anderson Cooper 360 and Larry King Live
for example, showcasing pro-polygamy women advocating for their rights to live the
polygamous lifestyle).

[FN8]. See Mariam Fam, Egyptians Divided Over Polygamy Proposal, Lexington Herald-Leader, Aug. 29, 2005, at A4 (account of Ms. Hyam Dorbek, a 42-year-old journalist, caused quite a stir advocating that Egyptian women and the "rest of the Arab world [should be] more open to
[p]olygamy as approved by Islam.").

[FN9]. See Shagufta Yaqub, Private Wives: This Week's Tale of a Man with Three Wives Might Have Shocked Many. But Polygamy Can Sometimes Work Very Well, Says Shagufta Yaqub, The Guardian (UK), Aug. 12, 2005, at 6. Journalist Shagufta Yaqub concluded from her research that "[p]olygamy can sometimes work very well." She continued by stating that "one of the women I spoke to believed that she was far better off being a second wife than a mistress." Another stated that she liked the system because: "there were no secrets involved and no infidelity." These testimonies, while presenting a subjective and perhaps slanted view of polygamy, reveal that women exist who would choose polygamy if they deem it beneficial totheir needs.

[FN10]. The scope of this article is limited to Islamic polygamy because the
complexity of Islamic law necessitates a separate treatment from the practice of
polygamy in other settings. Additionally, polygamous practices and manifestations
are so tightly connected to their respective legal system that each polygamous
setting ideally deserves separate treatment.

[FN11]. Michael Vestey, Islam and Polygamy, The Spectator (UK), Oct.23, 2004, at
68 (quoting Shagufta Yaqub on her ambivalence about polygamy).

[FN12]. Azizah Y. al-Hibri, Muslim Women's Rights in the Global Village:
Challenges and Opportunities, 15 J.L. & Religion 37, 39 (2001) [hereinafter al-Hibri, Muslim Women's Rights].

[FN13]. Azizah Y. al-Hibri, Islam, Law and Custom: Redefining Muslim Women's
Rights 12 Am. U. J. Int'l L. & Pol'y 1, 1-2 (1997) [hereinafter al-Hibri, Islam,
Law and Custom].

[FN14]. Id. at 2.

[FN15]. Id. at 3.

[FN16]. Azizah Y. al-Hibri, Islamic Constitutionalism and the Concept of
Democracy, 24 Case W. Res. J. Int'l L. 1, 3 (1992) [hereinafter al-Hibri, Islamic
Constitutionalism].

[FN17]. See e.g., al-Hibri, Muslim Women's Rights, supra note 12, at 44; al-Hibri,
Islam, Law and Custom, supra note 13; al-Hibri, Islamic Constitutionalism, supra
note 16.

[FN18]. See e.g., al-Hibri, Islam, Law and Custom, supra note 13; al-Hibri,
Islamic Constitutionalism, supra note 16. See also, al-Hibri, Muslim Women's
Rights, supra note 12, at 44 n.36 (for a discussion of how the Muslim governments
often appoint Imans or the Grand Mufti for specific purposes).

[FN19]. Abdulah Ahmed An-Na'im, Toward an Islamic Reformation: Civil Liberties,
Human Rights and International Law 21 (Syracuse University Press 1990)
[hereinafter An-Na'im].

[FN20]. Id. at 20.

[FN21]. An-Na'im, supra note 19, at 20.

[FN22]. Id.

[FN23]. al-Hibri, Muslim Women's Rights, supra note 12, at 44.

[FN24]. The Qur'an 117, 121, 251, 281 (Abdullah Yusuf Ali trans., Asir Media
2002). Verse 7:179 states: "Many are the [j]inns and [m]en [we] have made for Hell.
They have hearts wherewith they understand not, eyes wherewith they see
not, and ears wherewith they hear not. They are like cattle, nay, more misguided
because they are heedless...." Id. at 117. Verse 8:22 warns: "For the worst of
beasts in the sight of Allah are the deaf and the dumb, those who do not
understand." Id. at 121. Verse 25:44 reveals the frustration at people who do
not try to use their judgment to understand: "Or do you think that most of them
listen or understand? They are only like cattle, nay, they are worse astray in
[p]ath." Id. at 251. Finally, verse 29:69 emphasizes the reward for doing your
best to understand: "And those who strive in [o]ur (cause), [w]e will certainly
guide them to our [p]aths, for verily Allah is with those who do right." Id. at
281.

[FN25]. See An-Na'im, supra note 19, at 27 (stating: "[I]t is hard to imagine any
text of the Qur'an or Sunna, however clear and definite it may appear to be that
does not require ... ijtihad for its interpretation and application in concrete
situations. In this way, it would seem clear that ijtihad was a fundamental and
very active concept during the eighth and ninth centuries A.D.").

[FN26]. al-Hibri, Muslim Women's Rights, supra note 12, at 45.

[FN27]. See Ebrahim Moosa, The Dilemma of Islamic Rights Schemes, 15 J.L. &
Religion 185, 193 (2000-2001) [hereinafter Moosa, Dilemma of Islamic Rights]
(stating: "the rationales underpinning Islamic [r]ights may be derived from
reason, a divine order and public interests").

[FN28]. See Asra Nomani, A Gender Jihad For Islam's Future, The Washington Post,
Nov. 6, 2005, at B2.

[FN29]. An-Na'im, supra note 19, at 14-15.

[FN30]. Moosa, Dilemma of Islamic Law, supra note 27, at 187.

 

[FN31]. The Holy Qur'an 186 (4:1), 299 (6:98), 359 (7:189), 778 (30:21) (Maulana
Muhammad Ali trans., Ahmadiyyah Anjuman Isha'at Islam Lahore, Inc. 1995); see also
al-Hibri, Muslim Women's Rights, supra note 12, at 46 (stating that the Qur'an describes
all human beings as having been created from the same "nafs").

[FN32]. Ebrahim Moosa, The Poetics and Politics of Law after Empire: Reading
Women's Rights in the Contestations of Law, 1 UCLA J. Islamic & Near E.L. 1, 4
[hereinafter Moosa, Poetics and Politics].

[FN33]. Moosa, Dilemma of Islamic Law, supra note 27, at 193.

[FN34]. An-Na'im, supra note 19, at 33.

[FN35]. A "Talaq" is often described as a word uttered three times by men in order
to divorce a wife. See also Moosa, Poetics and Politics, supra note 32, at 30;
see also Feminists and Islam, Legal and Literary Perspectives 259 (Mai Yamani ed.,
New York University Press 1996).

[FN36]. Sylvie Faizang & Odile Jounet, La Femme De Mon Mari: Etude
Ethnologique Du
Mariage Polygamique En France (L'Harmattan 1988).

[FN37]. All names have been changed in order to maintain the
individuals' privacy.

[FN38]. Ba, supra note 2.

[FN39]. Faizang, supra note 36, at 92-95.

[FN40]. Id.

[FN41]. Id.

[FN42]. Id.

[FN43]. Id. at 63. The authors describe examples of conjugal agreements reached
between polygamist women that they studied. The regularity of conjugal visits
vary from household to household, but seem to range from one to four days. For
example, it seemed that 2 days/2 days was the most frequent combination in the
urban households while the 1 day/1 day combination dominated in the rural ones.
In the 1 day/1 day scenario, the husband would habitually drop his personal
effects at sundown in the room of the spouse in question, spend the night and have
access to her room until sundown the next day.

[FN44]. Id.

[FN45]. Id.

[FN46]. Id. at 37. The neglect of the older wives is also illustrated by the
author's observation that most of the women to whom they spoke were young because
their husbands, not able to keep all their wives in France because of financial
reasons, would generally send back their older spouses to their native
countries.

[FN47]. Faizang, supra note 36, at 55. The authors illustrate that the wives
usually have no choice as to whether or not their husband will take a second wife.
One husband candidly admits that, although he warned his first wife when he was
planning to marry a second wife, he still would have married his second wife even
if the first one had not agreed with his decision.

[FN48]. An-Na'im, supra note 19, at 19-20.

[FN49]. Id.

[FN50]. An-Na'im, supra note 19, at 19-20.

[FN51]. The Qur'an 61 (4:129) (M.H. Shakir trans., Tahrike Tarsile Qur'an, Inc.
1997). See also al-Hibri, Muslim Women's Rights, supra note 12, at 58 n.113
(addresses injustice of polygamy); id. at 59 n.117 (addresses equity and fairness).

[FN52]. The Qur'an 61 (4:129) (Shakir), supra note 51.

[FN53]. The Qur'an 22 (2:228) (Shakir), supra note 51.

[FN54]. al-Hibri, Muslim Women's Rights, supra note 12, at 51. See also id. at
51 n.75; 59 n.120; 62 n.139, n.143; 63 n.150; 64 n.155 (citing reference to Qur'an
4:34).

[FN55]. Id. at 46-48.

[FN56]. Id. at 64-65.

[FN57]. Id.

[FN58]. However, the only obstacle to this interpretation is that the term orphan
in Arabic can also be translated to mean "women." Thus, that line of argument is
weakened.

[FN59]. Dr. Zeenat Shaukat Ali, Marriage and Divorce in Islam: An Appraisal 117

(Jaico Publishing House 1987).

[FN60]. Ali, supra note 59, at 116 (quoting Worsely Boden).

[FN61]. Mr. Justice Aftab Hussain, Status of Women in Islam 127 (Law Publishing
Company 1987).

[FN62]. Id.

[FN63]. An-Na'im, supra note 19, at 63, 206-13.[FN64]. Id.

[FN65]. Id.

[FN66]. The Qur'an, (Shakir), supra note 51, at 48.

[FN67]. Ali, supra note 59, at 117.

[FN68]. The Qur'an, (Shakir), supra note 51, at 51.

[FN69]. al-Hibri, Muslim Women's Rights, supra note 12, at 47, 49; see also 47
n.51 (citing to Zaidan 'Abd al-Baqi, conceding that Muslim women are entitled to
spend their own money, but advising that they consult her husband before doing so
in order to maintain a harmonious relationship with him).

[FN70]. Abdulah Ahmed An-Na'im, Dossier 14-15: Islam and Women's Rights: A Case
Study (September 1996) available at http://www.wluml.org/english/pubsfulltxt.shtml?cmd%5B87%5D=i-87-2629 (last visited November 6, 2006) [hereinafter An-Na'im, A Case Study]. An-Na'im states:

Some Muslim countries have introduced limited reforms in the family law field.
These appear to be more likely to survive traditionalist and fundamentalist
backlash than the Iranian ones discussed above, because of their modest nature.

The 1979 amendments to the personal law of Egypt were carefully formulated to
forestall any unnecessary confrontation with conservative religious elements.
These amendments maintained the husband's rights of unilateral divorce and
polygamy while seeking to balance those rights by some procedural and financial
guarantees for the wife. In Pakistan, the Muslim Family Laws Ordinance of 1961
introduced some reforms. Among other measures, it instituted a network of
Arbitration Councils to deal with divorce, polygamy and maintenance of wives. Now,
the written permission of the Arbitration Council is required before a married man
can take another wife. These reforms are only small steps toward redressing human rights
objections to the status of women under Shari'a, and yet they are criticized by traditionalist
and fundamental groups as un-Islamic ....

[FN71]. See id. An-Na'im states:

Egypt is one of the very few Muslim countries to have ratified the Convention on
the Elimination of All Forms of Discrimination Against Women of 1979. It entered,
however, a reservation to Article 16 of the Convention which provides for the
equality of men and women in all matters relating to marriage and family relations
during the marriage and upon its dissolution. The Egyptian reservation
specifically stated that since these matters were governed by Shari'a, Egypt had
to derogate from its obligations under the Convention.

[FN72]. See An-Na'im, A Case Study, supra note 70.

[FN73]. al-Hibri, Muslim Women's Rights, supra note 12, at 60; see also n.127.

[FN74]. See An-Na'im, Case Study, supra note 70. An-Na'im states:

This proposal is timely because Muslims throughout the world are sensitive to
charges that their religious law and cultural traditions permit and legitimize
human rights violations; hence the efforts of contemporary Muslim authors to
dispel such allegations. Governments of Muslim countries, like many other
governments, formally subscribe to international human rights instruments because,
in my view, they find the human rights idea an important legitimizing force both
at home and abroad. Moreover, as explained earlier, many emerging women's
organizations and modernist forces are now asserting and articulating their
demands for justice and equality in terms of international human
rights standards.

[FN75]. al-Hibri, Islam, Law and Custom, supra note 13, at 1, 3.

[FN76]. Id. at 3.

[FN77]. Nomani, supra note 28.

[FN78]. Id. (reporting that the Sisters in Islam's newsletter "is being funded by
the successful multinational cosmetics company the Body Shop").

[FN79]. Nomani, supra note 28.

^BACK UP TO TOP^

155 AT THE INTERSECTION OF POST-911 IMMIGRATION PRACTICES AND DOMESTIC POLICIES: CAN KATRINA SERVE AS A CATALYST FOR CHANGE?
^BACK UP TO TOP^

Michèle Alexandre [FNa1]

 

 

Copyright (c) 2006 Chicana/o-Latina/o Law Review; Michèle Alexandre

 

First they came for the Communists, but I was not a Communist so I did not
speak out. Then they came for the Socialists and the Trade Unionists, but I was
neither, so I did not speak out. Then they came for the Jews, but I was not a
Jew so I did not speak out. And when they came for me, there was no one left to
speak out for me. [FN1]

Introduction

One of the continuing challenges in our era is to find effective ways to
unleash the otherwise silenced voices of oppressed groups. The Katrina disaster in
the fall of 2005 accentuated the need for an honest analysis of the hidden strata
of global poverty. This article investigates how the application of interest
convergence *156 and a redefinition of public purpose in redevelopment cases can
help address racial stratifications in domestic and immigration policies. The
article also uses the Katrina disaster to illustrate the mirror-effect of domestic
and immigration policies on non-white groups both inside and outside of the United
States. Ultimately, this article hopes to show that recognition of a race/class
pattern in these two spheres can lead us not only to prevent Katrina-like
disastrous treatment of non-whites in the United States but at the borders as
well. Technological advances and international business dealings all confirm that
borders are fast becoming illusive demarcations and that domestic decisions made
in one country often have resounding effects in another. Such is the case with the
implementation of race/class based policies in the United States. The treatment of
non-whites in the United States has influenced the United States' immigration
policies and dealings with majority non-white countries. Such race/class based
dealings in turn often causes an influx of immigration to the United States, which
in turn result in the proliferation of race/class based practices, which
themselves fortify the adherence to race-class based policies in domestic arenas.
Thus, this vicious cycle forever continues.

The race/class issues that already underlie the discourse of post-Katrina redevelopment
and immigration efforts reveal the necessity for immediate implementation of inclusive
and non-oppressive stratagems. The rebuilding of New Orleans should force governmental
entities and the United States at large todetermine how to balance the desire for economic
gain that underlie redevelopment efforts and the needs of the poor populations
in these areas who ordinarily are displaced by these same efforts due to lack of
financial resources. While post-redevelopment displacement of poor communities
is not unusual in the United States, the New Orleans effort has afforded us with
the momentum to address this issue. The Katrina disaster also gives us the opportunity
to lend a voice to otherwise voiceless groups by taking advantage of the sustained, even if
dwindling, national attention given to poor communities in New Orleans.

This article is divided into four sections. Part one demonstrates the ways in
which immigration policies have perpetuated a hierarchical race-class based
structure, thereby creating a vicious cycle of oppression and subordination. Parts
two and three offer suggestions as to how an interest convergence theory and a
redefinition of public purpose can help ameliorate policies in both domestic and
immigration spheres. Part four offers suggestions as to how to encourage a more
honest debate about the effect of race and class on domestic and immigration
policies and part five concludes.

*157 I. Parallels between the treatment of Non-Whites during the Katrina

Disaster and the Treatment of Non-Whites in Immigration Settings

The events surrounding the Katrina disaster in September 2005 [FN2] not only
highlighted the race/class based hierarchy existing in the United States, but also
perpetuated the idea of non-whites as sub-class citizens of the world inherent in
American immigration policies. A dissection of the discourse surrounding the
Katrina disaster showed an underlying commonality between the United States'
immigration and domestic policies. This commonality was particularly exposed in
comments that depicted New Orleans as foreign to the United States. Among these
statements: "I cannot believe this is America" [FN3] (uttered in shock at the
sight of the New Orleans' disaster), "New Orleans is a scene from the Third
World," [FN4] "U.S. Handles the crisis like a third world country," [FN5] and
"bodies floating on water reminiscent of Africa" [FN6] (description of the
post-Katrina desolation). It is interesting that individuals were only able to
make sense of the federal government's lack of response to New Orleans' needs in
the first four days after the disaster by likening New Orleans to a foreign
territory. Additionally these comments reveal a rapprochement between America's
domestic policies and its immigration policies that should open the doors to a
more honest discourse about race/class based American policies. This paper
proposes to demonstrate how, using an interest convergence analysis, public
purpose arguments can be used to overcome the race/class stratifications present
in the application of immigration and domestic policies.

The perception of non-white immigrants as a suspect class has been heightened
since September 11, 2001. Racial profiling facilitated by the Patriot Act has
exacerbated the unequal treatment received by non-white immigrants at American
borders. Similarly, the events in New Orleans have exposed a hierarchical system
based on race and class. The initial reaction to the stranded poor populace in New
Orleans during Katrina reveal systemic attempts to place the disaster in an
immigration context. Placing these attempts in an immigration context rather than
the *158 actual and domestic context to which it belonged somehow helped to detach
these disturbing events from what is generally viewed as the authentic American
experience. These detachment efforts stem from the fact that generally mainstream
Americans prefer to associate the United States with a country where all dreams
are possible and where hard work is rewarded. Consequently, it was necessary for
many individuals to categorize the New Orleans' victims of Katrina as "others" -as
an inexplicable manifestation of failure amidst the apparent well-oiled machinery
that is considered to be the United States.

On November 3, 2004, Reverend Danticat, an uncle of the Haitian writer Edwidge
Danticatt, died while in custody of United States' Immigration at the Krome
Detention Center. [FN7] He arrived in the United States seeking political asylum
armed with a valid U.S. visa. [FN8] Reverend Danticat [FN9] had a long history of
visiting the United States since the 1970's. He spoke through a voice box and did
not seem threatening. [FN10] The immigration officers detained Mr. Danticat and
confiscated his much needed medicine. [FN11] It is reported that "the popular
Baptist minister died handcuffed to a hospital bed on November 3, five days after
federal authorities confiscated his medicine, dismissing them as illegitimate and
voodoo-like." [FN12] No sense of obligation was felt by the immigration officers
or the government as no apology was issued. [FN13]

The treatment received by the stranded people in New Orleans strangely
resembled the treatment that non-white immigrants, like Reverend Danticat, receive
when attempting to enter the United States. During his detention, Mr. Danticat was
stripped of his humanity and treated by the immigration officials as a non-human,
an "alien" who was seeking benefits to which he was not entitled. Comparatively,
the non-white residents of New *159 Orleans suffered from similar treatment in the
first four days of the crisis. Overnight, New Orleans metamorphosed from one of
the most cherished cities of the United States to being described as "third
world-like," a term which is usually charged with contempt and condescension. Time
and time again commentators marveled that such misery was indeed taking place in
America. President Bush himself used words that seemed to depict New Orleans as a
foreign country. At various points, he described New Orleans as a 'devastated
country" [FN14] and referred to residents of New Orleans as "the people of this
part of the world." [FN15] During Katrina, the truth about the hierarchy of race
and class in America was revealed to the world. Commentators were shocked at the
New Orleans occurrence, but only a few were willing to denounce the event as a
perpetuation of the United States race/class based domestic policies. Even fewer
were willing to hold the United States accountable for implementing race/class
based hierarchical structures that created poor communities like the ones in New
Orleans.

 

The Katrina disaster and Danticat's story are examples of how immigration and
domestic policies serve to marginalize people of color in America. The common
thread between immigration and domestic policies is that both serve to protect the
interests of some at the expense of others. Unfortunately, these policies all
reveal that the interests protected are often that of the white and rich at the
expense of the non-white and the poor. The result of this dichotomy is a world
where one class of people is openly celebrated and granted all available
protections and where other unfortunate subclasses of people are either treated as
invisible or as suspects.

This last dichotomy was clearly displayed in the events surrounding the Katrina
disaster. The stranded New Orleans inhabitants were often portrayed as anomalies
as many marveled at the fact that they could have ever lived in such poverty. In
fact, former First Lady Barbara Bush was even quoted on CNN as remarking that the
shelters to which the evacuees were transported probably provided better
accommodations than the evacuees might have ever known in their former lives.
[FN16] To assume that life in an overcrowded shelter, with no privacy and no
possessions, would be better than the lives the evacuees knew before Katrina
denotes a complete de-valorization of them and their lives.

*160 The media also contributed to the portrayal of the New Orleans' residents
as "foreign" and "illegal." The media portrayed the stranded black occupants as
suspects by labeling them as "looters" when they were seen in possession of
grocery bags, in contrast describing white occupants as "finders" when seen in
similar situations. In addition, some individuals used the criminal element that
is necessarily present in all chaotic circumstances to imply that the New Orleans
residents deserved their fate. The commentators never discussed how American
policies have marginalized poor communities which would contextualize the chaos.

Mr. Danticat's experience is an example of how immigration policies have also
served to marginalize non-white immigrants. Non-white immigrants are often
perceived as suspects, while immigrants from majority white countries undergo less
scrutiny. While national security and border protections are necessary goals, they
should not be implemented via unequal and disparate practices. Increasingly, it
seems that the need for protection in the United States has translated into a need
for protection against non-whites, who are generally perceived as potential
threats or viewed as potentially harboring anti-American sentiments. The Patriot
Act [FN17] further helped crystallize discriminatory policies inherent in American
immigration policies. The racial profiling elements present in the implementation
of the Patriot Act have been addressed in legal scholarship, [FN18] but very few
have denounced the Act's role in helping to concretize the hierarchy of white
status as worthy of privilege and in need of protections against "second" and
"third world" non-whites.

This categorization was not of course created after September 11, 2001. Stories
of harassment and cruel treatment received by non-whites at immigration borders
and by immigration agencies abound not only in the United States but also in other
predominantly white countries. Many non-whites can recount stories of having been
detained in U.S. immigration offices under suspicion of fraud despite having all
the requisite papers for entry. These unnecessary detainments consist of hours,
sometimes days of grueling questioning, nerve-racking waiting periods and abusive
physical searches.

The cases of Haitian immigrants seeking asylum in the 1990s are perfect
examples of the United States' exclusion of non-*161 whites. In the 1990s, the
United States refused to grant political refugee status to Haitians fleeing the
mass killings occurring in Haiti after the overthrow of Aristide. [FN19] Between
1992 and 1996, "the United States Coast Guard interdicted on the high seas,
Haitians bound for the United States and returned them directly to Haiti." [FN20]
Subsequently in 1994, the United States was still "not allowing the Haitian
migrants to enter to the United States, but was not returning them directly to
Haiti." [FN21] During the same period, the United States granted asylum to
Russians and other members of the former Soviet Union. The Haitians who attempted
to enter the United States were detained in abusive conditions at Guantanamo Bay
before being finally deported home. [FN22] In contrast, in August 1994, the
United States "negotiat[ed] with the Cuban government to halt the flow of migrants to the
United States. These diplomatic negotiations culminated on September 9, 1994, in an
accord with the Cuban government. In this accord, the United States agreed . . . [that]
a minimum of 20,000 persons are to be allowed to the United States each year, not
including immediate relatives of American citizens who are under no numerical restrictions.
[FN23]

The granting of asylum to white Cubans at the time also demonstrated that the
race/class based hierarchical structure is sometimes applied to make distinctions
between non-whites. This distinction is often also guided by specific political
agendas. For example,

[d]uring the 1980s, the government denied 97% of Salvadoran and 99% of
Guatemalan asylum applications, in spite of the fact that there were civil wars
raging in both countries. At the same time, the government routinely granted
applications from people fleeing countries whose governments the Reagan
Administration opposed, such as Nicaragua and Cuba. [FN24]

A discussion of immigration policy necessitates an analysis of how these
policies reduce the civil liberties of immigrants. For example, on August 12, 2002
the Justice Department issued regulations that required men residing in the United
States on temporary visas from 25 predominantly Muslim countries (and North Korea)
"to meet special registration requirements." [FN25] The Rule *162 required
selected immigrants to report to government officials 30 days after arrival, every
12 months after arrival, after every change of home or school address, and prior
to leaving the country. These men were interrogated, fingerprinted, and
photographed. This legislation did not result in location of terrorists, but
instead, it allowed for easier deportation of nationals from the named countries
on non-terrorist charges. The list of countries to which this regulation applies
encompasses almost no predominantly white countries.

The requirement made, being a non-white and Muslim immigrant a crime, thereby
making them a suspect class without any further evidence. [FN26] In addition, the
broad powers awarded to the Attorney General via Section 411 of the Patriot Act
allowed for the certification of individuals as threats to national security upon
reasonable grounds to be determined by the Attorney General. Under Section 411 of
the Patriot Act, once certified, detention is mandatory with no prior notice of
arrest and no other recourse than a Habeas Corpus Motion and a Motion for
Reconsideration. Under the same Section 411, the Attorney General is also able to
expand the range of organizations or groups designated as a threat to national
security. [FN27] These regulations defied the United Supreme Court's rulings that
"the Constitution's guarantees apply to every person within U.S. borders,
including aliens whose presence in this country is unlawful." [FN28]

The persons who have been most adversely affected by these new rules are
non-whites. A person who is not fully aware of the obligation to register or who,
as immigrants do, regularly send money home, might be certified as a threat and
detained under the vague guise of security even though there are no actual facts
showing a national threat or risk of flight. Stories abound where immigrants have
lost their businesses and have been forced out of the country because of vague
allegations of financing terrorist organizations by virtue of having sent money
home to their families. Since Section 412 of the Patriot Act does not require
limiting certification or detention to persons who are believed to be dangerous or
a flight risk, vague accusations of terrorist involvement is often enough to
destroy an immigrant's dream of a better life *163 in America. [FN29] The Patriot
Act helped to further deepen the disparity between the treatment given to whites
in immigration practices and that given to non-whites.

III. Interest Convergence and Public Purpose Redefined: A Utilitarian

Justification for Reforms in Domestic Immigration Policies

While each sovereign nation must protect its borders, the need for protection
does not mandate that the policies must be unjustly applied to specific groups of
people. Changes in immigration practices and policies might be triggered by a more
concentrated focus on the experiences of non-white immigrants under post-9/11
immigration policies. The constitutional challenges presented by academic scholars
against the Patriot Act, and the work started by the Supreme Court in Zadvydas v.
Davis [FN30] and Rasul v. Bush [FN31] have started this process. In addition to
utilizing these types of constitutional challenges, stories that highlight the
disparate treatment between whites and non-whites should be collected, compiled,
and disseminated nationally and worldwide. Such revelations might cause a greater
numbers of American citizens to protest these measures and demand that immigrants
be treated with the same procedural protections and equal treatment at the
borders. Once individuals realize that stories like that of Reverend Danticat and
the tortures of Abu Graib are not isolated incidents but rather common practices,
they might be motivated to act. Compiling these stories might also force the
leaders of countries to bargain for more equal treatment of their nationals. In
other instances, private citizens might be able to help dismantle the veil of fear
around immigration issues by bringing these stories en masse to news papers,
webblogs, and courts in the form of lawsuits, thereby pushing the courts to
continue the work they have started in Rasul [FN32] and Zadvydas. [FN33]

Additionally, there is a need for more stringent requirements when determining
probable cause under Sections 411 and 412 of the Patriot Act. A new standard
should require specific facts proving terrorist activities. As it currently
stands, the Attorney *164 General's subjective standard is sufficient to detain a
suspect. The proposed standard would require the Attorney General's objective
"reasonable interpretation" of threat and would mandate that all detention
procedures be highly scrutinized for possible violations of the immigrants'
recognized Due Process rights. [FN34] In addition, there is a need for a more
consistent waiver of immunity against governmental officials and entities who
physically and legally violate the rights of immigrants in the U.S. without just
cause.

The people in the United States are better situated and have the most resources
to force the U.S. government to terminate the unequal treatment received by
non-white immigrants in America. Government officials from the immigrant's home
country often have little bargaining power with the United States. Accepting the
unjust detention of immigrants of color under the guise of security would
legitimize all unequal treatment based on race and discredit the work accomplished
by the Civil Rights Movement. Not protesting the unequal implementation of
immigration policies in the United States sends the message that disparate
treatment of non-whites in the rest of the world is acceptable.

African Americans have a utilitarian reason to protest the unequal
implementation of immigration. As the Katrina disaster has shown, these policies
if maintained set the tone for domestic treatment of African Americans and other
non-whites in the United States. Additionally, African Americans should also be
concerned that these sweeping and unequal applications of these policies might,
one day, infringe on their freedom of association and rights to privacy. As
members of a suspect class, African Americans are often scrutinized for speaking
against the status quo. They have historically been vocal about their
dissatisfaction with United States' domestic and global policies and consequently
are at risk under subjective policies promoting national security. Thus, an
alliance between immigrants and African Americans would provide a stronger task
force against these unfair immigration policies. The Katrina disaster revealed a
need to hold authorities accountable for the ways in which decisions adversely
impact poor, disenfranchised non-white communities. That task extends beyond
accountability for treatment of non-white residents of the United States and
should include accountability for treatment of non-white immigrants as well
because every mistreatment of a non-white immigrant is a statement that a
non-white's worth is minimal.

*165 Finally, Americans in general have a vested interest in lobbying against
discriminatory immigration policies. In the past few years, the implementation of
these policies has had a detrimental effect on the international image of the
United States. While world respect and acceptance might not seem like a valid
concern for the United States now, a good international image should be reasonably
cultivated, if only out of self interest, in case future needs for international
coalition building arise.

IV. Katrina, A Potential Catalyst for Changing the Race/Class Discourse

The Katrina disaster highlighted the racial disparity present in the United
States in a way that has not been done in a long time. Perhaps not since the Civil
Rights Movement have Americans been called to question their perception of African
Americans as well as the poor. In the aftermath of the Katrina disaster, it is
appropriate to determine whether the race/class discourse commenced during the
disaster can be used productively.

An honest dialogue about the effect of race and class on the lives of Americans
would reveal that the majority of Americans are affected on some level by
disparate policies. Consequently, there might be a vested interest for groups to
ally themselves not only along racial lines, but also economic lines and
commonalities. Applying Derrick Bell's "interest convergence theory," [FN35] many
white Americans might now find that their interest for governmental transparency
and efficiency converge with the interests of non-whites in being treated equally.
Katrina should also reveal that many white Americans have vested interests in
making sure that economic measures benefit a larger group of Americans rather than
a smaller number. Finally, white Americans also have a vested interest in ensuring
that security measures are not targeting certain groups in a discriminatory manner
but are instead narrowly tailored to provide protection without any abuses of
power. If discriminatory application of policies were to be maintained, the
discriminatory application could one day directly affect white Americans as well.

New Orleans demonstrated that a huge number of the American population lives
well below the poverty level and that, more than ever, race and class are tightly
linked. In the surge of generosity that followed the disaster, one hopes that the
old tendency to view the victims of poverty as irresponsible, lazy, and deserving
of their fate will now be seen as flawed. Post Katrina *166 discussions of poverty
should center on the elements that contribute to the disenfranchisement of the
poor and on how those elements can be defeated.

The Katrina disaster is similar to the revelation that occurred at the release
of Jacob Riis' How the Other Half Lives [FN36] at the turn of the twentieth
century. Like Riis' book, Katrina exposed issues that have been evaded, masked or
avoided for a long time. It provided an outlet for individuals to investigate the
ways racial constraints still manifest themselves in today's society. Over forty
years after the Civil Rights Movement, the Katrina disaster should trigger studies
geared toward understanding all the ways in which race and class interconnect. In
addition, inquiries should also investigate how to reach a balance between free
trade and placing a higher burden on industries for providing adequate wages and
benefits to employees.

Finally, in this era of globalization, the Katrina disaster connected not only
people, but also countries and governments in an unprecedented way. In the wake of
Katrina, many countries donated money and resources to the United States. A number
of poor countries along with political rivals of the United States, such as Cuba,
gave money or offered assistance. This caused a role reversal that hopefully will
cause Americans to realize that the hierarchy promoted by immigration and
international policies should be re-evaluated. During Katrina, international
leaders put a halt on their personal feelings about the United States as a
superpower and connected with Americans on a human level. These actions indicate
the possibility of mending some strained international relationships through
communication rather than harsh immigration policies.

V. Conclusion

The openness and generosity resulting from the Katrina disaster will hopefully
help erode the stigmatization of non-whites as suspects and dangerous. Such
stigmatization manifests itself in both immigration and domestic policies and
creates a badge of inferiority for non-whites. The de-humanization that results
from being detained and abused is paralyzing and fosters resentment. This is
similar to the stereotyping of poor blacks as criminal or lazy which also
engenders paralysis and resentment. Dehumanization creates a vicious cycle where
the victim is blamed and feels disempowered. As a consequence, the actual cause of
the economic inadequacy is never explored, thus never leading to a re-*167
evaluation of the policies and regulations that might contribute to a certain
groups' poverty. Despite this pattern, one is hopeful that the Katrina disaster
will help break the cycle. Breaking the cycle of blame will help raise the
consciousness of the nation so to motivate individuals to deal with these issues
of race and class more honestly and productively.

[FNa1]. B.A. Colgate University, J.D. Harvard Law School. Michele Alexandre is an
Assistant Professor of Law at the University of Memphis Cecil C. Humphreys School
of Law. This essay is the result of a presentation at the 2005 Oxford Round Table
in Oxford England in July 2005. The author thanks the University of Memphis Cecil
C. Humphreys School of Law for funding her trip to the 2005 Oxford Round Table.

[FN1]. Martin Niemoeller, Jewish Virtual Library, quoted in Robert S. Wistrich,
Who's Who in Nazi Germany (Routledge Press 1995) (1982), http://
www.jewishvirtuallibrary.org/jsource/biography/niemoeller.html.

Martin Niemoeller was a Protestant pastor born January 14, 1892, in Lippstadt,
Westphalia. He was a submarine commander in World War I. He was anti-communist and
initially supported the Nazis until the church was made subordinate to State
authority.

In 1934, he started the Pastors' Emergency League to defend the church. Hitler
became angered by Niemoeller's rebellious sermons and popularity and had him
arrested on July 1, 1937. He was tried the following year and sentenced to seven
months in prison and fined.

After his release, Hitler ordered him arrested again. He spent the next seven
years in concentration camps in 'protective custody.' He was liberated in 1945 and
was elected President of the Protestant church in Hesse and Nassau in 1947. He
held the title until 1964. He was also a President of the World Council of
Churches in the 1960's.

Niemoeller was a pacifist who spoke out against nuclear weapons. He is best
known for his powerful statement about the failure of Germans to speak out against
the Nazis ... He died in Wiesbaden on March 6, 1984. Id.

[FN2]. Hurricane Katrina was one of the most devastating storms in the United
States. It displaced hundreds of thousands of people, killed hundreds and
adversely affected the majority of New Orleans' black population who could not
evacuate on time.

[FN3]. Mukoma Wa Ngugi, New Orleans and the Third World, Countercurrents, Sept. 9,
2005, http://www.countercurrents.org/us-ngugi090905.htm.

[FN4]. Id.

[FN5]. Id.

[FN6]. Id.

[FN7]. Leslie Casimir, A Death in Custody: Homeland Security officials investigate
treatment of novelist Edwidge Danticatt's Uncle, who died seeking asylum, black
issues book review (Mar.-Apr. 2005), available at http://
www.findarticles.com/p/articles/mi_m0HST/is_2_7/ai_n12937368.

[FN8]. Id.

[FN9]. Award-Winning Novelist Edwidge Danticatt Blasts "Discriminatory and Brutal"
U.S. Asylum Policy in Death of Uncle (Democracy Now! radio broadcast, Dec. 1,
2004), available at http://www.democracynow.org/article.pl?
sid=04/12/01/1536230&mode=thread&tid=25.

(Reverend's Danticat's name is apparently not spelled the same way as her
niece, Edwidge Danticatt).

[FN10]. Id.

[FN11]. Casimir, supra note 7.

[FN12]. Id.

[FN13]. Nalo Hopkinson, Writer Edwidge Danticatt's Uncle Dead in Custody of U.S.
Immigration, Jan. 6, 2005, available at http://
www.sff.net/people/nalo/writing/2005/01/writer-edwidge-Danticatts-uncle-dead-in.html;
David Adams, Haitian pastor dies on U.S. doorstep, St. Petersburg Times Online,
Nov. 19, 2004, available at http://www.sptimes.com/2004/11/19/Worldandnation/Haitian_pastor_dies_o.shtml.

[FN14]. Ngugi, supra note 3.

[FN15]. Id.

[FN16]. Elder Bush, Clinton team up again for relief effort: Former presidents
create fund for hard-hit states, CNN, Sept. 6, 2005, http://
www.cnn.com/2005/US/09/05/katrina.fund/index.html. (Barbara Bush stating that the
Houston shelter is "working very well" for the poor).

[FN17]. Patriot Act, Pub. L. No. 107-56, 115 Stat 272 (2001).

[FN18]. See Raquel Aldana-Pindell, The 9/11 'National Security' Cases: Three
Principles Guiding Judges Decision-Making, 81 Or. L. Rev. 941 (2002). See also
Lawrence M. Lebowitz & Ira L. Podheiser, A Summary of the Changes in Immigration
Policies and Practices After the Terrorist Attacks of September 11, 2001: The
Patriot Act and Other Measures, 63 U. Pitt. L. Rev. 873 (2002).

[FN19]. Cuban Am. Bar Ass'n v. Christopher, 43 F.3d. 1412, 1419 (11th
Cir. 1995).

[FN20]. Id.

[FN21]. Id.

[FN22]. Haitian Ctrs. Council v. Sale, 823 F. Supp. 1028, 1033 (E.D.N.Y. 1993)
(INS action violates due process where Haitians had a protected liberty interest).

[FN23]. Cuban Am. Bar Ass'n, 43 F.3d at 1418.

[FN24]. ACLU, Position Paper, The Rights of Immigrants (Sept. 8, 2000), available
at http://www.aclu.org/ImmigrantsRights/ImmigrantsRights.cfm? ID=12413&c=22.

[FN25]. 67 Fed. Reg. 155 (Aug. 2002).

[FN26]. National Security Entry-Exit Registration System (NSEERS) (June 2002),
available at http://usinfo.state.gov/is/Archive_Index/EntryExit_
Registration_System.html; see also International Students and Scholars Office
Notice, Brandeis University (Jan. 2004), available at http://
www.brandeis.edu/isso/travel/NSEERS_After_December_2003.pdf.

[FN27]. Shirin Sinnar, Patriotic or Unconstitutional? The Mandatory Detention of
Aliens Under the USA Patriot Act, 55 Stan. L. Rev. 1419, 1422, (2003); see
Aldana-Pindell, supra note 18. See also Lebowitz & Podheiser, supra note 18.

[FN28]. See ACLU, Position Paper, supra note 24.

[FN29]. Id.

[FN30]. See Zadvydas v. Davis, 533 U.S. 678 (2001) (recognizing unlawful indefinite detention as unconstitutional under the Fifth Amendment Right to Due
Process, applicable to aliens present in the U.S. regardless of the lawfulness of
their presence).

[FN31]. See Rasul v. Bush, 542 U.S. 466 (2004) (conferring district court
jurisdiction to hear Guantanamo Bay's aliens' Habeas Corpus cases).

[FN32]. Id.

[FN33]. See Zadvydas, 533 U.S. 678.

[FN34]. Id.

[FN35]. Derrick A. Bell Jr., Brown v. Board of Education and the Interest
Convergence Dilemma, in Critical Race Theory: The Key Writings that Formed the
Movement 20 (Kimberle Crenshaw et al. eds., 1995).

^BACK UP TO TOP^
[FN36]. James A. Riis, How the Other Half Lives (Sam Bass Warner, Jr. ed., Belknap
Press of Harvard 1970). (A book of photographs about the atrocious conditions in
the cities and slums).

177 DANCE HALLS, MASQUERADES, BODY PROTEST AND THE LAW: THE FEMALE BODY AS A REDEMPTIVE TOOL AGAINST TRINIDAD'S GENDER-BIASED LAWS
^BACK UP TO TOP^

Michèle Alexandre [FNa1]

 

 

Copyright (c) 2006 Duke Journal of Gender Law & Policy; Michèle Alexandre

 

I. Introduction

Male domination of the female body is the basic material reality
of women's lives; and all struggle for dignity and self-determination is rooted in the
struggle for actual control of one's own body . . . . [FN1]

The very word erotic comes from the Greek word eros, the
personification of love in all its aspects-born of Chaos, and personifying creative power and
harmony. When I speak of the erotic, then, I speak of it as an assertion of
the lifeforce of women; of that creativity energy empowered, the knowledge and use of which we are now reclaiming in our language, our history, our dancing, our loving, our work, our lives. [FN2]

Aristophanes' play, Lysistrata, tells of a group of women who
withhold sex from their husbands until their husbands make peace with the Spartans. [FN3] This
simple story creates a powerful image of these women's awareness of
their bodies' inherent power. This awareness, arguably, pushes them to present the body as a
tool capable of triggering change. While this may, at first glance,
seem a story of manipulation, it is actually a celebration of the power and redemptive
qualities of women's bodies.

The female body has long been the subject of awe, shame, and controversy.
Women who have expressed themselves through their bodies have traditionally been
typecast as loose and oversexed by both men and women alike. Such *178 judgment
is symptomatic of the existence of "sexual profiling" in all cultures. In this
article, sexual profiling refers to the assumptions made regarding women who
express themselves through their bodies. Social stereotypes regarding
"morality" are generally used to evaluate women's behaviors and justify sexual
profiling. An analysis of the effects of sexual profiling on female bodily expression reveals
that laws and social constructs conspire to restrict women's autonomy
and freedom of expression. Moreover, sexual profiling has even impacted feminist
jurisprudence's view of female bodily expression. This impact is
evidenced by the fact that, thus far, feminist jurisprudence has neglected to embrace the female
body as a tool for redemption and liberation.

However, such an omission has not derailed female bodily expression. In all
cultures there are women who use their bodies to fight patriarchy and resist
gender-biased laws and assumptions. Therefore, this article argues
that feminist jurisprudence must identify women's bodies as tools for redemption
against sexism and patriarchy.

This article uses Trinidad as an example of a society in which
patriarchal laws that control women's bodies abound. [FN4] Specific Trinidadian laws perpetuate
society's widespread stereotypes of women's bodies and continue the tacit sexual
profiling of women. Despite these disadvantages, poor women in
Trinidad have used and continue to use the body as a tool for resistance. Trinidadian
women's use of their bodies to fight patriarchy is referred to in this article as
"body protest." The term "body protest" is coined here to describe women's use of the
female body as a mode of expression and as a tool for liberation and transformation. If we
"read" these women's bodies, we witness an organic feminism that should lead us
(academic feminists) to recognize our own internalized sexism and our
limitations in arguing for women's liberation. Trinidadian women lead us to a deeper
understanding of the role of the body in gender liberation.

This article attempts to further the feminist discourse by demonstrating how
embracing the female body as a redemptive tool can lead to a more liberated,
inclusive and effective feminist movement. This article consists of six parts.
The first part explores the concept of body protest. The second part provides a
history of the traditional stereotypes attached to women's bodies and discusses
the effects of body politics on women. The third part consists of an assessment
of feminist theory's treatment of the female body. The fourth part deals with
Trinidadian women's use of their bodies to reverse gender constructs
and explores how body politics in Trinidad should inform potential legal reforms.
Finally, the fifth and sixth parts discuss the lack of protection provided by Trinidadian
jurisprudence to Trinidadian women and incorporate a proposal for women-centric
legal reforms in Trinidadian law.

II. Body Protest Defined

This article explores body protest, its manifestations and the
challenges that its practitioners face. Body protest consists of the use of women's bodies by
*179 women to challenge gender restrictions and to activate women-centric legal
reforms. [FN5] It also encompasses the therapeutic goals of asserting dominance
over one's body and of facilitating one's expression of womanhood in revolt
against a patriarchal society. Instances of body protest include, but are not
limited to, women's use of their bodies through dance, dressing,
performance arts, etc. For example, certain women choose to dance suggestively, dress contrary to
societal standards of propriety, perform sexually explicit artistic roles, bring
attention to specific body parts, and adopt sexually explicit personas
in order to highlight the societal restraints imposed on them.

The non-legitimization of body protest by feminist jurisprudence is directly
related to stereotypes associated with the employ of the female body. These
stereotypes hinder potentially beneficial uses of the female body by designating
many of its liberating functions as immoral. The societal attitudes
engendered by these stereotypes also explain the legal system's reluctance to protect body
protest. This lack of protection, consequently, leaves women who choose this
valuable form of resistance unprotected and vulnerable. An exploration of body
protest reveals the existing diversity inherent in women's experiences and
struggles. This diversity benefits rather than harms feminist jurisprudence. A
more inclusive feminist jurisprudence will result from the inclusion of these
organic feminists' remedies. These organic feminists can also join forces with
academic feminists to form a stronger task force against patriarchy.

Recognizing body protest as a feminist endeavor is not without its
challenges.It requires accepting the possibility that women's experiences and struggles do
not always fit in the already established feminist categories. Still, analyzing
the reasons that motivate body protest will also provide feminist jurisprudence
with a clearer understanding of the tacit ways in which law oppresses
women. Body protest is organic feminists' response to the widespread sexual profiling that
they encounter daily in the social, political and familial spheres of
their lives. Feminists must realize the entrenchment of sexual profiling in these spheres in
order to effectively combat patriarchy. As suggested by Moira Gatens:
[F]eminists have offered little by way of a coherent theory of
the body. In particular, there has been little critical work done on the conceptual
dimension of the relations between women's bodies and the state: between the
body of woman and the body politic. In the absence of such theory, it is
culturally dominant conceptions of the body that, unconsciously,
many feminists work with. [FN6] It is time for a deeper understanding by feminist
jurisprudence of how dominant conceptions continue to oppress
women. Such new understanding *180 will then allow feminist jurisprudence to combat
gender-biased rules more effectively.

III. History of the Traditional Classifications of the Female Body

Sexual profiling is rooted in the gender stereotypes historically associated
with women's bodies. The belief in the inferiority of women's bodies dates as far
back as biblical writings. [FN7] An analysis of Aristotle's writings, [FN8] for
example, reveals an interpretation of woman as a "misbegotten man" who, because of
lack of heat, did not become fully human. [FN9] Beliefs regarding women's
physical or genetic inferiority translated into beliefs in women's psychological
and mental inferiority. Biblical stories portrayed women as weak-willed
temptresses susceptible to sexual temptations. For example, according to Rose
Weitz, Eve is blamed in Genesis for the fall of humankind in the eyes of the
Creator and for the attachment of original sin to the human race. [FN10] Women's
lower standing in society was, thus, justified by their presumed lack of
intelligence and lack of reason.

While women have historically received very little protection from the law,
enslaved African women received no protection at all. The law viewed them as
property, while society viewed them as beasts and animals. Enslaved African women
were entirely the physical and sexual subjects of their owners. The rapes of
African-American women were justified by rhetoric labeling them as
"animalistically hypersexual" and, thus, "responsible for their own rapes." [FN11]

Vestiges of these repressive views of women's bodies still remain not only in
men's and women's psyches but also in societal norms and in legal concepts. For
example, the United States, which purports to have achieved the greatest strides
in the struggle for women's rights, still grapples with the idea of an autonomous
female body. Debates over women's rights to abortions, as well as documented
interference with black women's reproductive and parental rights, speak volumes
about the attempts to subjugate the female body. [FN12] In her denouncement of
governmental restrictions on black women's reproductive rights, Dorothy Roberts
analyzes the roots of stereotypes associated with black female bodies, finding
that many of them originate in slavery. According to Roberts, "the licentious
Jezebel; the careless, incompetent mother; the domineering matriarch; and the lazy
welfare mother [are images that] have reinforced and legitimated [black mothers']
devaluation." [FN13] During the period of *181 slavery, black women were the
victims of the most self-annihilating contradiction: slave owners capitalized on
black women's reproductive abilities while constantly defaming their bodies. That
contradiction is poignantly exemplified by the method used to punish pregnant
slaves. It was the custom for:

Slave owners [to] force women to lie face down in a depression in the ground
while they were whipped, thus allowing the [slave owner] to protect the fetus
while abusing the mother. It serves as a powerful metaphor for the evils of a
fetal protection policy that denies the humanity of the mother. . . . It is
also a forceful symbol of the convergent oppressions inflicted on slave women:
they were subjugated at once both as blacks and as females. [FN14]

In view of these negative classifications of black women, it is not surprising
that black women progressively migrated toward the opposite view, a view that
presented them as more virtuous, chaste and genteel and did not leave them
susceptible to physical and spiritual denigration. Although reactionary, this
adoption of a more Victorian and European idea of virtue, at the very least, put
the rest of the world on notice that these stereotypes of black women would not be
tolerated. "Judged by the evolving nineteenth-century ideology of femininity,
which emphasized women's roles as nurturing mothers and gentle companions and
housekeepers for their husbands, [b]lack women were practically anomalies." [FN15]
Today, black women are not simply viewed as being promiscuous beasts of burden,
but must contend with modern stereotypes. Shows like the "Jerry Springer Show"
and the "Maury Povich Show" capitalize on some women's economic despair and social
challenges to deliberately depict poor black women as morally loose and unfit
parents. [FN16]

 

At no time do these shows ever analyze the socio-economic elements affecting
these women's lives. Instead, these women are presented to the public as
caricatures and as objects of the public's moral judgment. Regina Austin captures
some of the pejorative characterizations of black women in Sapphire Bound!, where
she states: "I grew up thinking that Sapphire was merely a *182 character on Amos
'n' Andy, [FN17] a figment of a white man's racist, comic imagination. Little did
I know that Sapphire was a more generally employed appellation for the
stereotypical black bitch--tough, domineering, emasculating, strident and shrill."
[FN18] For black women, liberation from the weight of these negative
characterizations is sometimes challenging. For some, the energy exerted to
negate these stereotypes results in their internalization. Consequently, the use
of the body as a liberating force and as a way to assert rights generally receives
mixed reception from feminist scholars as well as grassroots organizers.

IV. Critique of Feminist Theory's Treatment of the Female Body

Feminist theorists have explored the social construction of women's bodies
extensively. [FN19] More particularly, feminist discourses on the body have
denounced patriarchal oppression and invasion of women's bodies and the
perpetuation of the superior/inferior dichotomy. [FN20] Nonetheless, feminist
discourse has been extremely conflicted on the idea of the body as a tool for
renegotiating gender roles. While most feminists would acknowledge the
traditional use of sex to oppress and dominate women, [FN21] very few of them give
real credence to female bodily expression as a successful and useful conduit for
negotiating gender classifications. However, over the past decades, some
feminists have questioned their traditional analysis of heterosexuality,
prostitution, [FN22] and pornography by suggesting the possibility of agency in
*183 certain circumstances. These feminist argue that it is possible for women to
voluntarily choose to participate in heterosexuality and pornography without being
the victim of false consciousness and patriarchy. Critics of anti-prostitution
movements have also stated that laws designed to eradicate prostitution are
inadequately enforced and perpetuate the oppression of prostitute women. As a
result, the legal rules enacted to protect these women have made them even more
vulnerable to harassment by pimps, customers, and police alike. Priscilla
Alexander finds that the failure of the anti-prostitution movement stems from its
conviction that prostitution is illegitimate. She argues that:

If law enforcement is designed to reduce the amount of prostitution, it has
failed miserably . . . . Forced prostitution cannot be addressed until
voluntary prostitution is legitimate. Feminists' attempts to simply stop it,
and to 'rescue' the women who have been so badly abused, are doomed to fail
until the laws that punish prostitutes are abolished and businesses that employ
them are regulated . . . . [FN23]

Priscilla Alexander's statement illustrates the tension among feminists
regarding prostitution and pornography. Disagreements with anti-prostitution and
anti-pornography movements generally address the inadequacy of the laws regulating
the industries rather than advocating the redemptive potential of body use by
women. [FN24] Gail Pheterson exposes the underlying reason for this when
describing the interactions and non-interactions between feminists and sex
workers: [FN25] "Sex workers were rarely visible at feminists meetings. Given
the dominance of abolitionist feminism during the late 1970s and early 80s, those
feminists with either histories or present jobs in prostitution were careful to
conceal their 'politically incorrect' occupation." [FN26] Thus, fear of judgment
from fellow feminists caused these past or present sex workers to hide their
occupation and work separately. Anti-prostitution activists' failure to address
the complex nature of prostitution and to center the debate on the protected
nature of prostitutes' use of their bodies created a schism in the feminist
movement and excluded potential sympathizers, thereby weakening the fight *184 for
women's rights. [FN27] Gail Pheterson describes a number of conflicts, such as
Kathleen Barry's refusal to participate in a televised roundtable on sexual
slavery with a prostitute or ex-prostitute. [FN28] However, the fact that some
feminists and sex workers have finally teamed up to demand human rights
protections for prostitutes and have even published a statement on prostitution
and human rights, [FN29] provides hope that there can and will be future alliances
among women of varied social, economic, educational, and philosophical
backgrounds. The inclusion of personal and authentic narratives from specific
women's lives serves to humanize the continuing struggle for equality.

Feminist legal theory should focus not only on women's suffering and pain but
also on their stories of resistance and triumph. The deliberate inclusion of
women's narratives of resistance through the use of their bodies (as is often
illustrated by body protest) in feminist legal theory will require a suspension of
moral judgment on the part of traditional feminists. Such suspension necessitates
a restraint from quick accusations of "false consciousness" and an understanding
of the diversity of women's cultures and realities. Robin West explains false
consciousness:

As feminists know all too well, it is not just the legal culture which
trivializes women's suffering, women do so also . . . an injury uniquely
sustained by a disempowered group will lack a name, a history and in general a
linguistic reality. Consequently, the victim as well as the perpetrator will
transform the pain into something else, such as, for example, punishment, or
flattery or transcendence, or unconscious pleasure. A victim's response to an
injury which is perceived by the victim as deservedly punitive, consensual,
natural, subconsciously desired, legally inevitable, or trivial will be
different from a response to an injury which is perceived as simply painful.
[FN30] There is no denying that false consciousness occurs. Nonetheless,
labeling female bodily expression as a product of false consciousness confuses
the real issues and attempts to make women's actions fit into neatly
established feminist categories. This article calls for a reevaluation of
these categories. Doing so does not, in any way, negate the existence of
oppressive structures for women. The reevaluation of these categories does not
dilute the argument that legal and mainstream structures continue to create
systems that subjugate women and their bodies. However, reassessing feminists'
treatment of the female body will challenge some of the traditional analysis of
and categorization of women as passive victims.

 

The portrayal of women as passive victims already permeates feminist
jurisprudence. For example, West states that:

*185 [a]lmost all women, including those who have never experienced unwanted
sex or battery, have experienced the fear of rape . . . . One way that (some)
women respond to the pervasive, silent, unspoken, invisible fear of rape in
their lives is by giving their sexual selves to a consensual, protective and
monogamous relationship. [FN31] On the other hand, some women do conquer their
fears by making affirmative uses of their bodies in protest against societal
restrictions, although they are often dismissed as "floozies." Examples
include American pop culture icons, such as Lil' Kim [FN32] and Madonna, [FN33]
as well as everyday mothers and sisters who challenge traditional views of
sexuality through provocative dress and behavior. These women's behavior may
too easily be dismissed as being anti-feminist, or counter to traditional
values. Across cultures, a woman's worthiness and social acceptance is usually
closely related to the way she chooses to express herself physically, for
example, the way she dresses, her bodily expressions, etc.

Similar to racial profiling, the process of judging a woman based on her
clothes and bodily expressions, i.e. sexual profiling, marginalizes the profiled
woman. Still, sexual profiling and its consequences in all spheres of life,
including judicial lawmaking, continue to be less contested than racial profiling.
Denouncing the negative stereotypes [FN34] associated with women who choose to
wear suggestive clothing is just as crucial as denouncing the stereotypes
associated with urban black teenagers wearing baggy clothes. Both women and urban
black men are, by virtue of their clothes and physical expressions, judged as
being worthy of suspicion and deserving of harassment [FN35] and, by extension, as
being less worthy of legal protection. This rationale is demonstrated ad nauseum
in rape cases [FN36] and sexual harassment cases, [FN37] where the clothing of the
victim is often put at issue. The logic in such cases seems to be that certain
types of self-expression, for example, sexual self-expression, are completely
forbidden for women and that, if a woman chooses to disobey the norms, she is
estopped *186 from refusing access to her own body by anyone. As stated by Susan
Estrich, rape trials often adjudicate "the appropriateness of the woman's behavior
according to male standards of appropriate female behavior" [FN38] rather than
according to the actual issues presented at trial.

Mike Tyson's and Kobe Bryant's rape cases are two cases where such reasoning is
illustrated. In Mike Tyson v. Indiana, the court greatly focused on the victim's
style of dress. [FN39] Similarly, the alleged victim's sexual history in Kobe
Bryant's case played a prominent role in the court documents' description of the
facts and in media speculations. [FN40] In a third case, Commonwealth v. Killen,
the Pennsylvania Supreme Court ruled that statements by the complainant that could
be interpreted as sexually provocative "were not subject to the Rape Shield Law
and were admissible in order to assist the jury in assessing the complainant's
credibility . . . ." [FN41] This narrow interpretation of the Rape Shield Law
begs the following question: What factors should be used to determine the
relevancy of an alleged victim's sexual conduct during and after the alleged
incident? One commentator has said that in Killen "evidence existed tending to
prove that the complainant was the aggressor and that following the alleged
attack, she acted unlike an individual who had been raped." [FN42] What exactly
is the appropriate behavior for a rape victim? If she becomes numb and does not
fight off her aggressor, is she less worthy of protection? What if she initiates
sex in the beginning and subsequently changes her mind: should she then be
estopped from saying "no?" [FN43] Or, if she engages in sexual contact after the
alleged rape, does her rape claim become less valid? If the purpose of rape
shield laws is to prevent a rape case from turning into an attack on the victim's
sexual history and reputation, how can that goal be accomplished when courts are
now willing to admit what the law was designed to exclude?

The Killen ruling ratifies the perception that a woman who chooses to have sex
with more than one man would not have refused to have sex on the alleged occasion.
While Killen certainly does not state that evidence of prior or *187 subsequent
sexual conduct can be introduced if it has no probative value, [FN44] it does open
the door to more evidence being brought in under the rubric of relevancy. In
other words, it opens the door to sexual profiling: using evidence of sexual
behavior, unrelated to a specifically alleged crime, to serve as a proxy for
determining an alleged victim's credibility (and in essence her moral character).
It is as if a woman's unrelated sexual decisions are interpreted as giving a carte
blanche to men, i.e. a free pass to that woman's body. This is a continuation of
the mainstream view that the law should only protect women who follow the model of
chastity dictated by society.

The discourse of the victim's prior sexual experiences in the Kobe Bryant case
resulted in the dismantling of her character and a complete negation of her
honesty. [FN45] Elizabeth Iglesias confirms that "feminists have long recognized
that the dominant images of women represent us as mother, virgin, or whore.
Indeed, many feminists have linked violence against women to the ways in which
these images circulate in cultural narratives and the psychic structures of
individual men and women." [FN46] These social constructions of women have
isolated the female body from its inherent characteristic--that it is
intrinsically, completely, and unilaterally a woman's domain to dispose of at her
sole discretion.

Less attention has been paid to women's symbolic expressions of resistance and
liberation through their bodies. These forms of resistance are generally
unpopular and run the risk of being viewed as perpetuations of patriarchy.
However, they can be used as tools to combat sexism and the disenfranchisement of
women. Welcoming these modes of resistance as legitimate feminist weapons will
fortify the feminist movement and help overcome the misgivings and stereotypes
that women themselves often carry about "proper uses" of the female body.

Body protest is similar to the "outlaw culture" enunciated by Monica J. Evans
in her analysis of the systematic way in which black women have used their
positions at the margins to subvert discriminatory and oppressive norms. [FN47]

Evans describes outlaw culture as "the process by which African-Americans shift
within and away from identities in response to mainstream legal systems and
dominant culture" and "through which black women, develop and formalize strategies
for coping with the terrifying exclusion of blacks from the protection of
mainstream law." [FN48] Evans focuses on the way black women have traditionally
defied mainstream culture and created their own cultures, outside *188 of the
purview of the law, in order to obtain reprieve and remedies that the law could
not provide for them. Evans describes such "outlaw women" as Harriet Tubman and
Rosa Parks. [FN49] Tubman was an outlaw woman because she dared to "disrupt the
existing legal norms of property" and to "explode the boundaries of a destructive
culture." [FN50] Similarly, Parks, and Claudette Colvin before her, [FN51] became
outlaw women when they refused to obey Jim Crow laws. These women used a reversal
tactic that oppressed groups have often used throughout the world. They converted
a behavior regarded as illegal and subversive into an instrument of power, hence,
eventually reversing the legal definition traditionally associated with their
actions. As a consequence, Tubman, who formerly would have been described as a
contrabandist, and Parks, who would have been viewed as a troublemaker, have
become two of the most celebrated women in American history. It is of great
importance that these women who stood outside of the law were able to trigger
legal change and reform. Using non-legal methods they brought people and
behaviors traditionally located at the margins of the law within its purview,
thereby, making them legal. This is a methodology that is still used by women
today in their struggle for empowerment.

This struggle is often misinterpreted by the mainstream and feminist theorists
alike. Feminist scholar bell hooks' criticism of feminist activists who denigrate
women's choice of heterosexuality [FN52] can be applied to some feminists' blanket
prejudice against the use of the body to negotiate rights. bell hooks purports
that "feminist activists must take care that our legitimate critiques of
heterosexism are not attacks on heterosexual practice. As feminists, we must
confront those women who do in fact believe that women with heterosexual
preferences are either traitors or likely to be anti-lesbian." [FN53] A similar
admonishment should be issued regarding feminists' view of female bodily
expression. Underlying desires to appear proper and be accepted by the general
mainstream have led some feminist activists to "de-gender" [FN54] the female body
and to perpetuate stereotypes regarding female bodily expressions. Such a
characterization is dangerous, not only because it continues a tradition of
denigrating the female body but also because it creates a schism between feminist
scholars and the women existing and fighting at the margins of the law. *189 How
can feminist theory truly address the inequalities suffered by women if feminists
are disconnected from the realities faced by certain groups of women?

Women's struggle for control and domination of their bodies permeates all
aspects of their lives. It is a constant struggle by women to force the world to
respect and accept their own definitions of themselves, their bodies and their
beings. This battle has not been given the appropriate attention or recognition
because of feminist theory's over-emphasis on "sameness/difference" theories.
While such theories illustrate the existing conflicts between the sexes, they do
not, however, fully explore the complexities of various and endless struggles
carried on by women at different levels of our social echelons. In contrast,
Regina Austin's work examines body resistance by low-status black women. [FN55]
In order to resist societal classifications of adequate femininity and
heterosexual norms of attractiveness, certain groups of black women have
deliberately adopted non-conformist garments and physical behavior. Austin states that:

The impact of the attack on the femininity and sexuality of low-status black
female workers is quite broad . . . black women of any class who choose to look
and act like they survive without a man experience a reproach that is not
unrelated to the negative assessment of the beauty and sexuality of black women
of low economic status. Racist heterosexism and fear of black lesbianism,
within and without the black community, denigrate the sexuality and sensuality
of black females who eschew the primping of the pampered and privileged and/or
thrive as sexual beings within the orbit of a social order controlled by women.
All of these modes of vilification seek to control more than black women's
sexual expression; in addressing how and for whose benefit we ought to work,
they affect exploitation of our labor force. [FN56]

The extent to which feminist theory has co-opted mainstream definitions of
femininity and female expression is hard to determine. Still, the influence of
the dominant discourse regarding adequate forms of femininity" is widely reflected
in feminist jurisprudence's treatment of prostitution and pornography. [FN57]
While arguments targeting the arbitrary appropriation, domination, and subjugation
of the female body are necessary, there is little room in these analyses for the
acceptance of women's choices, in addition to a reluctance to recognize a
plurality of experiences. Feminists' constant representation of the female
prostitute as a misguided woman or as a victim negates the possibility that a
"prostitute" or "pornographer" could be a valuable contributor to the women's *190
rights struggle. Rather, these women are portrayed as unwitting beings that
better-knowing and more knowledgeable protectors, i.e., non-prostitute feminists,
have to protect. This characterization creates a schism among women that prevents
a consideration of women's diverse needs. As stated by Shannon Bell:

Prostitutes' collective public demand for the legal right to be recognized as citizens just like all others is not a demand for equality in spite of difference but a demand for equality based on the distinct difference of being
a prostitute. What lies just beneath the surface of the demand [is] . . . an
affirmation of a 'negative' identity and a revaluation of values through the
recognition of commercial sex as being just as valid and worthy as
non-commercial sex. [FN58] It would be counterproductive to continue to impose
preconceived notions of proper feminist conduct or to continue assuming that
certain modes of expression through the female body are inherently tainted and
invalid. If the female body is dismissed as a non-legitimate tool in fighting
patriarchy, isn't feminist theory then saying that the female body's only
purpose is to perpetuate patriarchy? [FN59] Feminist scholars confirm the
stereotypes patriarchy attaches to the female body when limiting, even if
implicitly, the female body's role to that of a subject of patriarchy.

V. Examples of Liberative Uses of the Female Body by Women In Trinidad and

Tobago and the Challenges They Face

A. History of Body Protest and Resistance by Trinidadian Women

Women in Trinidad and Tobago have a long history of both overt and covert
resistance. [FN60] Located off the northeastern coast of Venezuela, Trinidad and
Tobago are twin Caribbean island states which were under English colonization
until the 1960s. Intermittent occupation by the Spanish, French, and Portuguese,
as well as the British, left influences of all four cultures in the language and
customs of the people of the islands. Nonetheless, the dominant cultural
influences in Trinidad stem from the remaining Amerindians in Trinidad, as well as
the large African and Indian populations. Africans were brought to the two
islands as a result of the slave trade and today, their descendants make up over a
third of the population. Another forty percent consists of Indians who migrated
to the island as indentured servants in the second part of the nineteenth century
after the abolition of slavery in Trinidad. [FN61] *191 This cultural diversity
is instrumental when analyzing the ways in which Trinidadian women negotiate
gender.

While the feminist movement in Trinidad and Tobago has made tremendous gains
since its inception in the 1940s, the gains have been limited by the faulty
implementation of laws geared towards the protection of women. [FN62] These
faulty implementations are, however, not accidental but are rather the result of
mainstream resistance to the idea of governmental regulations in favor of women.
Where dominant groups are forced to accede to the demands of subjugated entities,
it is common for these groups to create a legal system where deficient rules
masquerade as legal rules that promote the formal equality of those who are
subjugated. [FN63] Paulette Pierce describes this subterfuge as a common response
"by hegemonic classes to demands, from marginalized groups, for greater inclusion
in modern systems of control and resource distribution." [FN64] Pierce labels
this substitution as a "structural deflection" and "an adroit substitution of a
formal equality for a true equality that would require fundamentally changing the
way things are done, changing the goals of the organization, or both." [FN65]

The enactment of Trinidad's Domestic Violence Act and its subsequent faulty
application in the court system is a perfect example of Pierce's aforementioned
"adroit substitution" of formal equality for true equality. Despite mainstream
objections that the act was an attempt to criminalize "husband and wife business,"
it was enacted. [FN66] Its enactment was a cause for celebration for women
throughout the Caribbean region because it was symbolic of women's gains over
Trinidad's entrenched patriarchal system. It is reported that "thousands of women
from all over the country filed applications for *192 protection as soon as the
act became law." [FN67] Unfortunately, the law fell victim to patriarchal
"cultural habits" present everywhere in Trinidad, including the courtrooms and the
clerk offices. As a result, "the vast majority of applications for protection
orders do not result in restraining orders." [FN68] In addition, as stated by
Mindie Lazarus-Black, "when lawmakers and activists passed the Domestic Violence
Act, they imagined a regendered state attuned to the problem of violence against
women. As many anthropologists and linguists have shown, however, implementing
rights and protections requires attention to everyday ideologies and practices of
the culture at the courthouse." [FN69] To achieve the end of true equality,
feminists should pay attention to the way in which formal equality may masquerade
as true equality, as well as examine closely the ways in which women may
masquerade feminist activism in everyday life.

Poor Trinidadian women illustrate the power of an organic feminism in the way
they choose to dispose of their bodies. From slavery to modern times, Trinidadian
women have been able to maneuver around societal constraints and create their own
sub-reality and sub-culture, both as a coping mechanism and as a way of asserting
their independence and identity. Historically, they have used their bodies as
liberating forces and as a means of obtaining political, societal, and sexual
power. Such nontraditional behavior and clothing, displayed in settings such as
dance halls and street carnivals, should inform a restructuring of Trinidadian
jurisprudence.

Afro-Caribbean women initially used masquerading, or "dressing up," at Carnival
to invent new social structures and/or reverse already existing ones. [FN70] As
Pamela R. Franco pointed out, dressing up is a "non-confrontational style that
allows [Afro-Caribbean] women to be visible, not as objects, but as agents and
producers of meaning in their performances." [FN71] Afro-Caribbean women who
participated in early European-based celebrations were concerned with
self-representation and symbolic repositioning, because they were unable to
perform the masquerades of their homelands, which were representations of
ancestors, guides and teachers in initiation ceremonies. Historians describe
costumes, such as the French-Creole Martiniquan dress, with "elaborate underskirt
. . . turban, foulard, and a profusion of jewelry" as a dress of "'high affect'
juxtaposing highly contrasting colors and designs." [FN72] While these elaborate
costumes resembled variations of the existing European style of dress, they were,
in fact, used by Afro-Caribbean women "as public displays of rank and authority"
[FN73] rather than simple imitations of European women. Costumes were, thus, used
by Afro-Caribbean women as encoded signs and masks that *193 helped recreate a
social order in which they, an oppressed group, occupied positions of power.

Indo-Trinidadian women had their own way of resisting dominance and traditional
patriarchal norms. Indian women who came to the island as indentured servants had
the unique opportunity to depart from the established gender roles perpetuated in
their homelands. While gender inequity (in wages and treatment) certainly existed
among indentured Indians, researchers suggest that at least "the system of
indentureship did offer conditions under which [women] could earn an independent
wage. The 1847 Immigration Ordinance granted . . . $2.40 to male Indians, $1.45
to female Indians . . ." [FN74] The capacity of women "to commodify their labour
power in Trinidad . . . despite the lower value attached to their labour, must
have provided a material base from which they could achieve a degree of economic
independence." [FN75] While the immigrants and the regulators strove to maintain
traditional family life, housing conditions created a close proximity that
facilitated gender interactions and negotiations, especially for single men and
women. [FN76] Thus, "[a]way from the watchful eyes of parents and kin, women and
men had the option of choosing from several willing partners. This was a
fundamental break with the patriarchal tradition, where marriages were arranged by
parents, and families kept intact by a host of kin relationships and duties."
[FN77] To say that indentured women were given the chance to create new
opportunities and break way from some of the patriarchal restraints does not
negate the fact that these women were also physically vulnerable to rapes and
crimes. Stemming from the belief that those women's bodies belonged to men, there
was a high incidence of rape and violence against women during their
indentureship. Nonetheless, Indian women who migrated to Trinidad were still able
to negotiate some advantages that rendered life on the island preferable to a
return to India. A much higher percentage of Indian men than Indian women
returned to India. [FN78]

This phenomenon seems to be in great part due to the fact that, while Indian
men found it quite easy to resume their roles in Indian society on return to
India, women were considered to have lost their caste or status in India and found
it hard to readjust to life there. [FN79] By leaving India, these women had
already transgressed traditional female conduct and the new habits they adopted in
the colony were unacceptable in the old setting. [FN80] For example, in *194
1893, "females who upon their arrival [to Trinidad] would veil their faces with
their ornie at the approach of a man . . . [would] after some years' residence in
the colony, merely touch the ornie with the hand, and in many cases neglect to do
so altogether." [FN81] Furthermore, many of the single Indian women who migrated
to Trinidad did so in order to escape some form of societal constraint or
difficulty in their lives and found in the island more freedom than in India. As
a consequence, single Indian women often thought it was preferable to remain on
the island at the end of their indenture than to go back home. This situation is
illustrated by the greater reported numbers of women who attempted to secure
return to Trinidad after returning to India than men. [FN82]

When settled in Trinidad, it is reported that the new Indo-immigrant women
found many ways to carve out new identities and challenge the patriarchal
structure. These new attempts at independence, however, often triggered violent
responses from the male population. [FN83] Indo-Caribbean women sometimes defied
the established norms by changing sexual partners at will and by taking paramours
of different races. These actions alarmed both the Christian missionaries and
Indo-Caribbean men. When Sarah Morton, a missionary, narrated her conversation
with Indo-Caribbean women on the issue of sexuality, she recorded her revolt at
what she called the women's sexual depravity:

The loose actions and prevailing practices in respect of marriage here are
quite shocking to the newcomer. I said to an East Indian woman whom I knew to
be the widow of a Brahmin, 'You have no relations in Trinidad, I believe?' 'No
Madame, she replied, 'only myself and two children; when the last immigrant
ship came, I took a 'papa.' I will keep him as long as he treats me well. If
he does not treat me well, I shall send him off at once; that's the right way,
is it not?' [FN84]

Some Indo-Caribbean women renegotiated their standing in relation to their male
counterparts through the politics of the body. Setting the standards for
appropriate treatment in male-female relationships, they defied the norms of
patriarchy and Christianity by even indulging in polyandrous practices and
interracial intercourse. Risking violence against them by their male
counterparts, [FN85] Indo-Caribbean women "continued to challenge normative *195
expectations of Indian female sexuality and simultaneously redefine[d] femininity
in the Trinidad-Indian context." [FN86] These indentured women shook the fabric
of patriarchy in such a way that in 1916, a year before the end of indentureship,
a group of indentured laborers filed a formal complaint against the actions of
Indian women. [FN87] The complaint specifically deplored the freedom Indo-women
were able to exercise in their choice of sexual partners and the inability of
their husbands, brothers, and fathers to prevent their actions. It stated in
part:

Is it plausible that those females desire to live as paramours with males of
a different race to hers. Fathers nor husbands, nor brothers, who are their
lawful protectors have power over them and are not in the least heard when such
matters are brought before the authorities. [FN88] As time passed, the number
of Indian women on the island increased and patriarchal structures established
a stronghold over Indo-Caribbean women's lives on the island. Still, through
body protest, Caribbean women continued to challenge normative concepts of
sexuality and women's roles in various arenas.

B. Body Protest and Resistance as Expressed in Modern Day Settings in
Trinidad and
Tobago

Not only during Carnival do Trinidadian women appropriate and invert the
dominant culture's norms. Faced with the constraints of a male-dominated culture,
Trinidadian women challenge social norms everyday at dance clubs and in
neighborhood streets. Such metamorphoses are so convincing that it becomes
difficult to determine where the performances end and reality begins. These women
are also subject to great dangers because they are often viewed by the dominant
class as loose and easy prey. Women, while literally masquerading by wearing
costumes, also figuratively do so by adopting personas that normally would not be
deemed acceptable by Trinidad's patriarchal society.

Masquerading in non-carnival settings takes various forms: from women dressing
the part of the courtesan of old, to the sultry, sexually experienced, aggressive
woman who defies society, to the woman who is completely in control of her own
body and expresses it to every beat of the music. We see her *196 in the club,
winding suggestively to calypso or reggae beat, [FN89] overpowering her male
partner with the thrust of her hips, becoming the pursuer. In sharp contrast to
her domestic or professional identity, she becomes the sexual aggressor, through
her explicit grinding and purposefully explicit sexual dancing, with and without a
partner. In addition, she often uses the movements of her body to exert control
over her male partner. [FN90] For example, she might use speedy and strong hip
movement to throw her male partner off balance. Consequently, we often see an
inversion of the mating dance where the man becomes the hunted and the woman the
powerful huntress.

The male partner in the above scenario is overwhelmed by this contrary form of
expression and does not truly understand the source of it, categorizing it as odd,
licentious and problematic, even while fully participating in it. This adoption
of traditionally masculine roles by women in these settings, of course, begs the
question of whether this behavior ultimately benefits women or whether it simply
duplicates the patriarchal system, thus, strengthening a system already oppressive
to women. While it is certain that some women are simply mirroring a pattern of
behavior learned from patriarchy, other women are attempting to carve out an
identity that is in direct opposition to traditional Caribbean gender roles.

Regardless of the actual cause of the behavior and of whether the masquerader
is, in fact, the puppet of an omnipresent puppeteer, I contend that the
masquerades that play out in these subcultural settings should inform a more
women-centric reform of Trinidadian jurisprudence. Legal reform for women that
recognizes women's rights to sexual expression and control of their bodies,
without oppression, abuse, and intervention by men, is imperative. Women's
attempts to forge a more complex identity seem to have gone unnoticed by
Trinidadian jurisprudence. An exploration of criminal, family, and succession
laws reveals that not only are the realities of women's lives not addressed in
Trinidadian jurisprudence, but also that some of their basic needs for legal
protections are ignored.

VI. Women's Body Protest and Resistance Reveals Need for
Women-Centric Reforms

in Trinidadian Jurisprudence

Trinidadian jurisprudence is young and pregnant with possibilities for reform.
The need for indigenous reforms that move away from the neutral language of
English jurisprudence is evidenced by the fact that statutes do not *197 address
Trinidad-specific problems experienced by women in the region. In examining
Trinidadian jurisprudence in relation to women, this article is divided into two
categories: first, a look at aspects of Trinidadian law that are facially
discriminatory towards women and, second, an analysis of the aspects of
Trinidadian law that are facially neutral, but are discriminatory in their
application of the law.

A wide variety of laws in Trinidad are facially discriminatory. Because of the
rise in rape cases in Trinidad, the first category of great concern includes rape
laws. Rape and violence against women in Trinidad is, by all accounts, at an
all-time high. Marital rape was only recently outlawed in Trinidad. [FN91] The
recent presence of this act on the books is chilling, not only because it reveals
the lack of protection afforded to married women, but because of the statement it
made about Trinidadian society's views of women's bodies. This law disregarded
women's ability to consent to sex and their right to control their own body after
marriage. The rationale underlying this statute was flawed and its reasoning
tacitly condoned other acts of physical violence against women. It also ratified
the domestic abuser's feeling of entitlement to commit acts of violence against
women's bodies. [FN92] The legal definition of rape in Trinidad still seems to
favor the perspective of the accused over the perspective of his alleged victim.
A case that is the seminal precedent for determining consent in rape cases states
that:

Rape is not a word in the use of which lawyers have a monopoly and the
question to be answered in this case, as I see it, is whether according to the
ordinary use of the English language a man can be said to have committed rape
if he believed that the woman was consenting to the intercourse and would not
have attempted to have it but for his belief, whatever his grounds for so
believing. I do not think that he can. [FN93] The problem with consent being
established subjectively is that it mutes the women's voice and negates the
possibility that she might have withdrawn her consent.

Another example of gender bias in the actual drafting of the law is seen in
Trinidad's statutory rape laws. Strict liability is applied to statutory rape
crimes *198 committed against girls age thirteen and younger, but not to statutory
rape crimes committed against girls between fourteen and eighteen. [FN94] The law
thereby treats young women as sexual actors and sees them as active contributors
to their fate, no matter how immature they may be. The law may be so written in
part because sexual involvement by men with girls as young as twelve is so high in
the Caribbean that legislators are either reluctant to change the status quo or
perhaps because they view sexual involvement with minors as acceptable.
Furthermore, sexual offenses such as abducting unmarried girls under age fourteen,
as well as "attempting to procure any girl . . . not being a common prostitute, or
of known immoral character, to have unlawful carnal connection" are only
punishable by two years in prison. [FN95] Additionally, the age of consent for a
female minor's ability to contract marriage can be as low as twelve years old.
[FN96] This rule might speak specifically to the diverse racial makeup of
Trinidad's population. The ethnic makeup of Trinidad and Tobago is 39.6% African
descent and 40.3% East Indian descent, with rest of population being of mixed,
European and Asian descent. [FN97] Traditionally, arranged marriages at a young
age have been common in several of these communities and might explain the
Trinidadian legislature's decision to set the age of consent at
twelve-years old.

Abortions are illegal in Trinidad, except to protect the life or health of the
mother; those who are found guilty of procuring an abortion can be imprisoned for
up to four years. [FN98] Despite its being illegal, the abortion rate in Trinidad
is thought to be higher than in the United States, and abortion has turned into a
lucrative business for those willing to perform them. [FN99] The issue of whether
women should have access to legal abortions is a delicate subject in a deeply
Catholic and religious country. However, giving women the right to legal abortions
would raise the standard for legal protections granted to Caribbean women, because
it would recognize that women should be the sovereign of their bodies.

There is also a need for a revision to common law marriages in Trinidad and
Tobago. While great strides have been made in allowing Caribbean women in common
law unions to obtain maintenance or inheritance rights, this legislation is not
reflected in the day-to-day realities many Caribbean women face. Currently, the
law recognizes common law unions as valid unions that entitle women to both
maintenance and inheritance rights if they can prove *199 cohabitation for an
extended period of time. [FN100] However, the legislature has failed to address
the existing problem of men having more than one common law union, frequently in
addition to being legally married. Where a decedent leaves multiple common law
wives, they presumably must compete for the label of sole wife at the death of
their common law husband. Trinidadian jurisprudence, thus far, has been blind to
the de facto polygamy that exists in the Caribbean and, consequently, has failed
to hold men legally responsible for their actions.

In addition to facially discriminatory laws, Trinidad and Tobago has many laws
that are gender-neutral, but are applied in a discriminatory way by the courts.
Trinidad and Tobago's constitution supports the equality of all citizens under the
law and the legislature has in many ways attempted to pass laws that would insure
equality between the sexes. Why, then, are Trinidadian women still subordinated
and subjected unequal treatment even in the face of the laws?

One of the reasons lies in the current inefficiency of the legal machinery in
Trinidad. Mindie Lazarus-Black asserts that the failure of the domestic violence
laws in Caribbean countries to provide meaningful protection to its victims of
domestic violence is due to four factors: (1) the sheer number of protection
applications that are filed, (2) the fact that few applications actually result in
extended protections, (3) the fact that the majority of applications are withdrawn
or dismissed, and (4) the considerable time commitment required to resolve these
cases, which often means that women need to take a lot of time off work if they
actually want to prevail. [FN101] Another challenge to obtaining adequate legal
protections for women in Trinidad lies in the court system's lack of organization
and lack of a proper method of tracking the cases in the court system. [FN102] In
this context, it is very easy for members of subordinate classes, such as women,
to get discouraged and eventually decide against pursuing the case. The fact that
the system is so disorganized speaks volumes about how little importance members
of the legal system accord to domestic violence cases. In addition to their
inefficiency, women seeking remedies from the courts have to deal with
intimidation, the humiliation factor of having their personal lives on trial, the
effects of judicial discretion (which is often formed by the decision-maker's own
bias and socialization), and the numerous second chances given by courts to their
abusers. [FN103] These inherent flaws in the proper application of the law reveal
a need for gender reform to take place not only in the laws, but also in the attitudes of the population.

 

*200 VII. Reform Proposal

To reform the traditional English law-based Caribbean system, a new generation
of Trinidadian women must lobby lawmakers to make greater use both of indigenous
concepts of identity and concepts of gender equality. In order to accomplish
this, both men and women will have to be educated about how law is both made and
applied, [FN104] so that they can organize grassroots reformation movements to
promote change. While women's rights movements, led by such scholars as Rhoda
Reddock and Patricia Mohammed, have been somewhat successful, feminist activism in
Trinidad should not be limited to an educated class of women "helping" less
educated ones. Combined efforts to recognize the potential contributions of women
from all social spheres will not only create a healthy, egalitarian, feminist
movement in Trinidad but will also put more pressure on the male-dominated
legislature to represent women's interests. [FN105]

Furthermore, there is an urgent need to infiltrate the political system in
Trinidad and implement ways of holding the legislators accountable for their
indifference towards women's concerns. Lobbying and forceful protests against
politicians' decisions might force them to enact useful, women-centric laws in a
quicker fashion. Such lobbying has worked in the past, causing the passing of the
Domestic Violence Act in Trinidad. It can still work today. It is important to
show lawmakers that the majority of women are unhappy with the laws.

Both male and female attorneys should advance woman-centric, equitable
arguments in court documents without fear that they will not be taken seriously by
the judges or that they will be labeled as being too sensitive. However, a new
generation of women attorneys will be instrumental in advocating for change inside
and outside of the courtrooms. Many professional women in Trinidad readily admit
that they experience oppression from the "good ole boy" network in the legal
profession. Breaking the vicious cycle of that network will entail a continuing
and constant denunciation of its existence and its nefarious effects.

VIII. Conclusion

Body protest is not particular to a country or region. Sexism and patriarchy
are problems that are inherent to all societies and legal systems are commonly
unable to protect the women who contest the status quo. Thus, it is not
surprising that we find varieties of these inadequacies both in the U.S. and in
international settings. Throughout the world, some women use body-inspired tools
to renegotiate society's restrictive and oppressive gender definitions. Exploring
such uses, however, demands that we eradicate preconceived traditional notions and
learn to appreciate the potential utilitarian and redemptive functions of body
politics. Body protest demonstrates that the *201 female body is a symbol loaded
with meaning and that its use can constitute protected speech. Body protest is
evoked in the context of Trinidad's traditional custom of masquerading because the
terms "body protest" and "masquerade" both refer to the presentation of physical
elements which mask underlying messages and social commentaries.

The purpose of discussing Trinidadian women's "body protest" is not to portray
Trinidad's gender issues as being unique, but to demonstrate how these women's
symbolic actions constitute feminist activism. Trinidad is yet but one example
where these types of struggles take place daily. The goal is for all those who
are committed to "global feminism" to find ways to exert pressure on local
governments so as to obtain more legal protections for these types of protests.
This article recognizes that while countries are currently in various stages of
the struggle for women's rights, women's use of their bodies for resistance and
redemptive functions need to be accepted by all legal systems in order for women
to be adequately protected. Furthermore, this article proposes that social gains
often occur from "the bottom up" [FN106] and that self-expression by women from
lower economic classes often exposes the needs and problems that all women face.

The failure of some feminist scholars to consider the redemptive qualities of
using the female body denotes that they, too, have internalized patriarchal
classifications of women's bodies. Feminist theory must overcome its own biases
about women's use of their bodies. Female bodily expression has generally been
associated with eroticism, which is a concept that is "often . . . misnamed by men
and used against women." [FN107] Eradication of these biases will remove a
monumental obstacle to trans-cultural, trans-economic coalition-building among
women. Recognizing the female body's redemptive functions is important because
such a process will ultimately facilitate collaboration between more women. Being
more inclusive (both domestically and internationally) of various groups of women
will create a stronger feminist task force.

The changes proposed will not take place overnight and will necessitate
cross-cultural and cross-generational coalition-building. A study of law-making
in American jurisprudence shows that legal changes occur over long periods of time
as a result of social, political and international pressure. [FN108] This recipe
may also apply to Trinidad. This does not mean that American standards and views
should be forced on other countries, but that women activists from throughout the
world should team up to help each other push through reforms that would increase
women's rights. The success of these coalitions will depend on feminist
theorists' ability to accept and understand non-traditional forms of resistance to
patriarchy and the struggles of women who live at the margins of society.
Understanding non traditional tools of resistance, like the female body, will not
*202 only facilitate a greater discourse among women internationally but also
reinvigorate the domestic feminist movement.

[FNa1]. Assistant Professor of Law at The University of Memphis, Cecil C.
Humphreys School of Law; B.A. Colgate University, J.D. Harvard Law School. The
author thanks the Fulbright Foundation for its support and for facilitating the
rewarding and fulfilling academic and cultural exchange that was her Fulbright
Fellowship. The author also thanks Dr. Patricia Mohammed, Imani Perry, Dr. Rhoda
Reddock, Janet Richards, Kindaka Sanders, Kevin Smith, and Yao Sores for their
comments and support. Finally, the author thanks her student research assistant,
Ms. Vanessa Cross. This article gained much from presenting it at the University
of West Indies' Centre for Gender and Development Studies' Luncheon Seminars, at
the Second Annual People of Color Legal Scholarship Conference held at the George
Washington University Law School and at the Feminist Legal Theory Conference held
at John Marshall University, on February 19, 2005.

[FN1]. Andrea Dworkin, Pornography: Men Possessing Women 203 (E. P. Dutton 1989)
(1979).

[FN2]. Audre Lorde, Uses of the Erotic, in Sister Outsider 53, 55 (1984).

[FN3]. See Aristophanes, Lysistrata (Douglass Parker trans., Signet
Classic 1970)
(centering around a group of women in Athens led by Lysistrata who, outraged at
having lost their sons to war, agree to deny their husbands sexual intercourse
until they make peace with the Spartans).

[FN4]. This paper concentrates on women's struggle in an international setting to
illustrate the need for international coalition-building among women.

[FN5]. Body protest also might fall under critical legal studies' notion of
flipping or "[a]ppropriating the central idea of your opponent's argument-bite and
claiming that it leads to just the opposite result from the one she proposes."
Duncan Kennedy, A Semiotics of Legal Argument, 42 Syracuse L. Rev. 75, 87 (1991).
This article, however, argues that organic feminists, as exemplified by certain
Trinidadian women, go beyond flipping the patriarchal structure by actively
questioning and combating it through the deliberate use of their bodies.

[FN6]. See generally Rose Weitz, A History of Women's Bodies, in The Politics of
Women's Bodies 3 (Rose Weitz ed., 2d ed. 2003), for similar argument.

[FN7]. See id.

[FN8]. Aristotle, The Generation of Animals 716A4-9 (A. L. Peck ed. & trans.,
Harvard Univ. Press rev. ed. 1953), available at http://duke.usask.ca/~
niallm/233/Aristotl.htm, ("As we said one can easily identify the causes of birth
as the male and the female, the male as the cause of change and development, the
female as the supplier of the material.").

[FN9]. Weitz, supra note 6, at 3.

[FN10]. Id. at 4.

[FN11]. Id. at 4-5.

[FN12]. See generally, e.g., Dorothy Roberts, Killing the Black Body: Race,
Reproduction and the Meaning of Liberty (1997); Dorothy Roberts, Shattered Bonds:
The Color of Child Welfare (2002).

[FN13]. Dorothy E. Roberts, Punishing Drug Addicts Who Have Babies, 104 Harv. L.
Rev. 1419, 1437 (1991).

[FN14]. Id. at 1438.

[FN15]. Angela Y. Davis, Women, Race & Class 5 (1981); see Paula Giddings, When
and Where I Enter: The Impact of Black Women on Race and Sex in America 37 (1984)
(reviewing the negative stereotypes held in relation to Black women and the intersection of race and class in Black women's status in America); see also A. Leon Higginbotham, Jr., In the Matter of Color 40-47 (1978)
(discussing society's historical negative perception of black women).

[FN16]. The Maury Povich and Jerry Springer shows frequently center around black
women who do not know the paternity of their children. A typical show
introduces black women as guests who are unsure of the paternity of their children.
Paternity tests are conducted on two, three, or four contenders associated with each woman.
( While both shows periodically conduct paternity tests, The Maury Povich show seems to conduct them more frequently). The audience waits breathlessly to find out whether these allegedly promiscuous and unethical black women will be able to determine the identity of their children's fathers. The
ultimate shame comes when, after the tests, none of the male contenders is found
to be the father. These narratives and other variations of them (similarly
questioning black women's morals) are repeated endlessly over the
fifty-two weeks of the year that these shows air. Maury Povich's and Jerry Springer's shows are
not the only ones that present black women in that fashion. They onlyexemplify a
common pattern in daytime television and society.

[FN17]. See New Dictionary of American Slang 368 (Robert L. Chapman ed., 1986)
(defining "sapphire" both as an unattractive black woman and the name of a
character on Amos n' Andy). "Amos 'n' Andy" originated as a radio
comedy programabout two black males. Bart Andrews & Ahrgus Julliard,
Holy Mackerel! The Amos and Andy Story 16 (1986). It was first broadcast
in 1951, with a cast of carefully chosen black actors. See id. at 45-49, 60-61.
Various black civil rights organizations condemned the television version as
"fostering racial stereotypes." David Schutz, The Original Amos 'n' Andy Webpage: History,
http://www.geocities.com/Hollywood/2587 (last visited Jan. 11, 2006).
As the fightagainst racial discrimination heated up, sponsors became increasingly wary of
associating their products with black entertainers--this fear of association in conjunction with criticism of the show's depiction of black Americans led thenetwork to drop the show in 1953. Pam Deane, The Museum of Broadcast Commc'ns, Amos 'n' Andy Show, http://www.museum.tv/archives/etv/A/htmlA/amosnandy/amosnandy.htm (last
visited Jan. 11, 2006).

[FN18]. Regina Austin, Sapphire Bound!, 1989 Wis. L. Rev. 539, 540 (1989); see
also bell hooks, Ain't I a Woman 85-86 (1981); see also Patricia Bell Scott, Debunking Sapphire: Toward A Non-Racist and Non-Sexist Social Science, in All the Women are White, All the Blacks are Men, But Some of Us are Brave 85 (Gloria T. Hull, Patricia Bell Scott & Barbara Smith eds., 1982).

[FN19]. See Weitz, supra note 6, at 9.

[FN20]. See id. (discussing the social construction of the female body and promotion of women as inferior to men).

[FN21]. See e.g., Catharine A. MacKinnon, Toward a Feminist Theory of the State 215, 215-36 (1989); Catherine A. MacKinnon, Feminism Unmodified (1987). [FN22]. See generally Priscilla Alexander, Prostitution: A Difficult Issue for Feminists, in Sex Work (Frederique Delacoste & Priscilla Alexander, eds., 1987), reprinted in Women and the Law 962-70 (Judith G. Greenberg, Dorothy E. Roberts &
Martha L. Minow eds., 2d ed. 1998) [hereinafter Women and the Law] (discussing traditional feminists' perceptions of sex workers as tools and prostitution as illegitimate); see also Priscilla Alexander, Making a Living: Women Who Go Out, in Women's Experience With HIV/AIDS 75 (Lynellyn D. Long & E. Maxine Ankrah eds., 1996) (discussing numerous aspects of prostitutes' lives and issues in a global
report that includes information about working conditions and health); Priscilla
Alexander, Prostitution Around the World (1993) (unpublished database, on file
with the San Francisco Public Library) (including information about laws,
enforcement practices and issues regarding mandatory testing for a wide range of
countries around the globe, survey forms and related materials); Priscilla
Alexander, Sex Workers Fight Against AIDS: An International Perspective, in Women
Resisting AIDS: Feminist Strategies of Empowerment 99, 99-123 (Beth E.
Schneider & Nancy E. Stroller eds., 1995) (discussing how AIDS discourse is changing as a
result of the active involvement in the struggle to prevent AIDS).

[FN23]. Alexander, Prostitution: A Difficult Issue for Feminists, reprinted in
Women and the Law, supra note 22, at 968.

[FN24]. See Patricia Hill Collins, Black Feminist thought (1991), reprinted in
Women and the Law, supra note 22, at 1025, 1025-36; Andrea Dworkin, Against the Male Flood: Censorship, Pornography and Equality, 8 Harv. Women's L.J. 1, 1-29
(1985); Carlin Myer, Sex, Sin, and Women's Liberation: Against Porn-Suppression, 72 Tex. L. Rev. 1097, 1097-1201 (1994); Mariana Valverde, Sex, Power and Pleasure
121, 121-45 (1987), reprinted in Women and the Law, supra note 22, at 1059,
1059-65.

[FN25]. "Sex workers" is a term that refers to persons whose profession provides
types of sexual services.

[FN26]. Gail Pheterson, Not Repeating History, in A Vindication of the Rights of
Whores 3, 18 (Gail Pheterson ed., 1989).

[FN27]. See id. ("[C]oncurrent and separate from feminist debates on prostitution
and pornography was a growing movement of political prostitutes, especially in North America and Western Europe .... Feminists who followed the anti-prostitution and anti-pornography line were often viewed by political prostitutes as naive or self-righteous agents of control and condemnation. Prostitutes were viewed by the same feminists as either victims of abuse or collaborators with male domination.").

[FN28]. Id. at 997 (reporting that Barry justified her refusal with the claim that
the "conference was feminist and did not support the institution of prostitution").

[FN29]. Int'l Comm. for Prostitute's Rights, Statement on Prostitution and Human
Rights (1986), reprinted in Women and the Law, supra note 22, at 998.

[FN30]. Robin West, The Difference in Women's Hedonic Lives, 3 Wis. Women's L.J.
81, 85 (1987).

[FN31]. Id. at 103-04.

[FN32]. Lil' Kim's given name is Kimberley Jones. She is a female rapper who
became known in the mid 1990s. She is known for her provocative lyrics and
sexually suggestive clothing. At the 1999 MTV Music Awards, she appeared dressed
in a lavender suit with one bare breast covered only by a matching pasty.

[FN33]. Madonna is a pop culture icon who is known for her controversial lyrics,
provocative costumes, and daring behavior.

[FN34]. See generally bell hooks, Yearning: Race, Gender and Cultural Politics
(1990).

[FN35]. See, e.g., Elvira R. Arriola, "What's the Big Deal?" Women in
the New York Construction Industry and Sexual Harassment Law, 1970-1985, 22 Colum. Hum. Rts. L.
Rev. 21, 22-57 (1990).

[FN36]. See, e.g., Sakthi Murphy, Comment, Rejecting Unreasonable Sexual
Expectations: Limits on Using a Rape Victim's Sexual History to Show the
Defendant's Mistaken Belief in Consent, 79 Cal. L. Rev. 541, 545 (1991) (stating
that rape, historically, has been treated differently from other crimes); see also
Susan Estrich, Rape, 95 Yale L.J. 1087 (1986) (stating that sexism is inherently
present and ingrained in Rape Law).[FN37]. See e.g., Meritor Sav. Bank, FSB v. Vinson,
477 U.S. 57, 69 (1986) ("[W]hile 'voluntariness' in the sense of consent is not a defense to such a
claim, it does not follow that a complainant's sexual provocative dress is
irrelevant as a matter of law in whether or not she found particular sexual advances unwelcome.").

[FN38]. Estrich, supra note 36, at 1094.

[FN39]. Tyson v. Indiana, 619 N.E.2d 276, 282, 286 (Ind. Ct. App. 1993) ("Woman who exited from the backseat of the limousine was approximately 5'6" to 5'7" in height and was wearing a black mini skirt and a top which had a collar... [she was] an African-American woman with shoulder-length curly hair... [or]
with tinted hair.").

[FN40]. See Blaine Harden, Bryant Case is Called a Set-Back, Wash. Post, Sept. 3,
2004, at A08; see also, Bryant v. Colorado, No. 03 CR 204 (Eagle County Ct.,
Colo., Oct. 20, 2003) (preliminary hearing), available at http://
news.findlaw.com/hdocs/docs/bryant/cobryant102003ord.pdf.

[FN41]. Commonwealth v. Killen, 680 A.2d 851, 854 (Pa. 1996).

[FN42]. Brian J. Golias, Note, Evidence - the Pennsylvania Rape Shield Law -
Admissibility of Evidence Concerning Sexual Conduct Offered for Purposes of
Impeachment, 35 Duq. L. Rev. 953, 971 (1997).

[FN43]. See Murphy, supra note 36, at 548 ("According to the traditional analysis,
whether 'no' means 'no' depends on what kind of woman the victim is. A woman's
sexual lifestyle has always been one of the prime criteria for deciding whether
her 'no' indeed means 'yes.' Thus, a 'no' from a 'good girl' might be respected,
while a 'no' from a 'bad girl' might not. The dichotomy captures both the idea
that sexually experienced women do not tell the truth and the idea that a woman
who consents to sex once has a propensity to consent again and again.").

[FN44]. See Golias, supra note 42, at 971 ("One should not interpret Killen to
mean that evidence of an alleged rape victim's sexual conduct occurring during or
after the alleged rape is admissible at trial even if such evidence has no
probative value.").

[FN45]. Elizabeth M. Iglesias, Rape, Race and Representation: The Power of
Discourse, Discourses of Power, and the Reconstruction of Heterosexuality, 49
Vand. L. Rev. 868, 886, 902 (1996) (discussing how the language around rape and
implications behind the terms used have strategic implications and social
meaning).

[FN46]. Id. at 902.

[FN47]. Monica J. Evans, "Stealing Away": Black Women, Outlaw Culture and the
Rhetoric of Rights, in Critical Race Theory: The Cutting Edge 500, 500-13 (Richard
Delgado & Jean Stefancic eds., 2d ed. 2000).

[FN48]. Id. at 501.

[FN49]. Id.; see also Stephanie L. Phillips, Claiming Our Foremothers: The Legend
of Sally Hemmings and the Tasks of Black Feminist Theory, 8 Hastings Women's L.J.
401, 407-15 (1997) (discussing historical black female figures that have defied
mainstream definition of who they should be).

[FN50]. Evans, supra note 47, at 502.

[FN51]. Claudette Colvin is reported as the first African-American woman to defy
Jim Crow and refuse to give up her seat on a public bus. As a result of her
refusal, the fifteen-year-old was handcuffed and jailed. Colvin subsequently
became part of Rosa Parks' youth group. Parks then became the leading figure in
the organized bus boycotts during the civil rights movement. E.g., Amanda Dawkins,
Unsung Bus Boycott Hero Cite 50 Years Later, The Decatur Daily News (Online
Edition), Feb. 6, 2005, http://www.decaturdaily.com/decaturdaily/news/050206/bus.shtml.

[FN52]. bell hooks, Feminist Theory: From Margin to Center 148-58 (1984),
reprinted in Women and the Law, supra note 22, at 929, 932.

[FN53]. Id. at 932.

[FN54]. De-gendering here refers to the process of rendering the female body less
female and controversial (both in actual practice and in rhetoric) in order to achieve more social gains.

[FN55]. Regina Austin, Black Women, Sisterhood and the
Difference/Deviance Divide, 26 New Eng. L. Rev. 877 (1992), reprinted in Women and the Law, supra note 22, at 973.

[FN56]. Id. at 977.

[FN57]. It should be noted that a few feminists have acknowledged the issue of
agency in women's use of their bodies in the context of pornography and
prostitution. In addition, recently, two feminist authors presented an argument
for prostitution as legitimate labor by the women who practice it. See Bertha
Hernandez-Truyol & Jane Lawson, Prostitution, Work, and Human Rights, Address at
the Thomas Jefferson School of Law Fifth Annual Women and the Law Conference (Feb.
18, 2005), available at http:// www.tjsl.edu/downloads/Her.pdf. However, there is
still a general lack of recognition by feminist jurisprudence of the body as an
effective tool against patriarchy. Fewer feminists still have advocated the use
of the body as a type of symbolic speech that should be protected by legal
systems, including certain instances of prostitution that involve women's agency
and are not controlled by men or the police.

[FN58]. Shannon Bell, Reading, Writing and Rewriting the Prostitute Body 101
(1994).

[FN59]. Pheterson, supra note 26, at 17 ("Women's liberation movements throughout
the world have not been immune to social, legal and ideological distortions of the
lives of prostitutes . .. most contemporary feminists are isolated from women in
the sex industry. A common misconception among feminists is the belief that women
are protected by efforts to abolish prostitution....").

[FN60]. See generally Patricia Mohammed, Gender Negotiations among Indians in
Trinidad from 1917-1947 (2002).

[FN61]. The Government of Trinidad & Tobago Government Online - General
Information, http://visittnt.com/General/about/general.html (last visited Feb. 26, 2006).

[FN62]. Rhoda Reddock reports that women's organizations in Trinidad and Tobago
flourished during the 1940s and 1950s due to better opportunities for women, as a
result of the war and the establishment of universal suffrage in Trinidad in 1946.
In Trinidad, education soon became the means for entrance into formerly
exclusively male social arenas. As women gained more access to education, many
women's organizations developed, such as the Housewives' Association of Trinidad
and Tobago, the National Commission on the Skills of Women, Trinidad's Women for
Progress, and the Center for Gender Studies and Development at the University of
West Indies in both St. Augustine, Trinidad and Mona, Jamaica. Rhoda E. Reddock,
Women Labour & Politics in Trinidad and Tobago: A History 162 (1994). See also
Patricia Mohammed, Reflections on the Women's Movement in Trinidad: Calypsos,
Changes and Sexual Violence, 38 Feminist Rev. 33 (1991); Selwyn Ryan, Social
Stratification in Trinidad and Tobago: Lloyd Braithwaite Revisited, in Social and
Occupational Stratification in Contemporary Trinidad and Tobago 58 (1991).

[FN63]. Formal equality here refers to the laws that purport to place women in the
same status as men, but do not necessarily provide them with substantive equality.

[FN64]. Mindie Lazarus-Black, The (Heterosexual) Regendering of a Modern State:
Criminalizing and Implementing Domestic Violence Law in Trinidad 28 L. & Soc.
Inquiry 979, 985 (2003), available at http://www.journals.uchicago.edu/LSI/journal/issues/v28n4/284001/284001.web.pdf
(quoting Paulette Pierce, Boudoir Politics and the Birthing of a Nation: Sex, Marriage, and
Structural Deflection in the National Black Independent Party, in Women Out of
Place: The Gender Agency and The Race of Nationality 216, 228 (Brackette F.
Williams ed., 1996)).

[FN65]. Id.

[FN66]. Id. at 994 (quoting Trinidad Guardian, Mar. 10, 1991).

[FN67]. Id. at 985 (quoting Merri Creque, The Shelter for Battered Women and Coal
against Domestic Violence, A Study of the Incidence of Domestic Violence in
Trinidad and Tobago from 1991 to 1993 (1995)).

[FN68]. Id. at 985.

[FN69]. Id. at 986.

[FN70]. See Pamela R. Franco, Dressing Up and Looking Good: Afro-Creole Maskers in
Trinidad Carnival, 31 African Arts, Spring 1998, at 62, 62-96.

[FN71]. Id. at 63.

[FN72]. Id. at 64.

[FN73]. Id.

[FN74]. Mohammed, supra note 60, at 43; see also Bridget Brereton, General
Problems and Issues in Studying the History of Women, in Gender in Caribbean

Development, 127 (Patricia Mohammed & Catherine Shepperd eds., 1988). Brereton
notes that many Indian women came as single women instead of as wives and
daughters and that such circumstances allowed them to slightly escape rigid
classifications by earning and keeping their own wages.

[FN75]. Mohammed, supra note 60, at 43. See also Kapil Kumar, Rural Women in Oudh
1917-1947: Baba Ramchandra and the Women's Question, in Recasting Women: Essays in
Colonial History 337-69 (Kumkum Sangari & Sudesh Vaid eds., 1989).

[FN76]. Mohammed, supra note 60, at 44 ("All Immigration Ordinances deemed it
illegal to separate husbands and wives and children under the age of 15.").

[FN77]. Id.

[FN78]. Id. at 50.

[FN79]. Id.

[FN80]. Id.

[FN81]. Id. at 50 (quoting Dennis Wood Deane Comins, A Note on Emigration from
India to Trinidad 38 (1893)).

[FN82]. See Mohammed, supra note 60, at 52 (illustrating the efforts of Indian
women's return to Trinidad after being unable to reintegrate into Indian society
with data that includes the correspondence of immigration officials. For example,
a letter recorded in 1928 noted that an old emigrant woman, who emigrated to
Trinidad in 1887 and returned to India in 1927, appeared at the immigration office
in India and "stated that she was in great distress and wished to return to the
colony").

[FN83]. There were a great number of recorded of murders and "chopping" of women
by men who became jealous either because a woman lover replaced them with another
man or because he suspected her of romantic involvement another man. Mohammed,
supra note 60, at 188-90.

[FN84]. Id. at 183 (quoting John Morton of Trinidad 343 (Sarah Morton ed., 1916)).

[FN85]. Id. at 188 ("Even when the indentureship system ended... 'crimes of
passion' persisted with some regularity.... In Chaguanas, an inquest was held
into the death of Antee, an Indian woman, killed on the Montrose Estate on
February 28, 1918. The verdict delivered by Mr. R.M. Van Buren, Senior
Magistrate, was that the 'woman came to her death by the severing of the spinal
cord as a result of wounds inflicted by Lutcgmansingh who has since hanged
himself'.... In April 1919, Narinesigh, a middle-aged Indian man, was indicted
for wounding one Jusoral on Thursday, October 27th at the San Pedro estate. The
case for the Crown was that Narinesingh and Jusoral had been living together for a
considerable period of time. She left him about four months before, having
'transferred her affections' to another Indian male. 'On the day in question, the
accused went to the house of his rival, called the woman out and inflicted a
severe cut on her forehead. The cut went through a considerable portion of the
bone and the brain matter was almost exposed'.... Men were sometimes also the
victims of jealousy-motivated violence: "Jealous at the idea that his sweetheart
had transferred her affections to another labourer on the Caroni estate, by the
name of Stephen Rogers [most likely a non-Indian man], Dookie, one morning in July
last, inflicted two severe wounds on Rogers with a brushing cutlass. Dookie
giving evidence said 'Rogers took away my wife...."').

[FN86]. Id. at 188.

[FN87]. Id. at 190.

[FN88]. Id. (quoting Petition of Indentured Labourers in Trinidad (1916)).

[FN89]. "To wind" is the verb in the English Caribbean that refers to the dance
movements involving the lower part of one's body. Winding is usually associated
with socca, calypso and reggae (dance hall) music.

[FN90]. Trinidadian women's attempt to control their bodies and resistance to
patriarchy is also present in the socca songs of female Trinidadian artists. For
example, such songs as "I'm Going to Kill You with My Wind Tonight" and "Carnival
Is a Time for Freedom" by Saucie Wow and "Bonnie and Clyde" by Destra, all
demonstrate Trinidadian women's intent to resist patriarchal structures and
defeating restrictions imposed on their bodies. In "Bonnie and Clyde," for
example, Destra specifically creates an ode to her rag as her sole reliable
companion and rejects the presence of any male companion in a desire to remain
autonomous. Similarly, when performing, Saucie Wow traditionally invites a man to
the stage and unfailingly overpowers him physically, thus, publicly shaming any
attempt he makes at controlling her body.

[FN91]. Press Release, Comm. on the Elimination of Discrimination Against Women,
Committee on the Elimination of Discrimination Against Women Concludes
Consideration of Trinidad and Tobago Report, U.N. Doc. WOM/1316 (Jan. 29, 2002).
[FN92]. See Leela Ramdeen, Eliminating Violence Against Women, Trinidad Guardian
(Online Edition), Nov. 22, 2004, available at http://www.guardian.co.tt/archives/2004-11-22/Leela Ramdeen.html.

[FN93]. Director of Public Prosecutions v. Morgan, [1976] A.C. 182 (H.L.),
available at http://www.nuigalway.ie/law/Common%20Files/larry_
donnelly/nameMorgan_and_rape_.rtf (emphasis added) The court held that where a
defendant had sexual intercourse with a woman without her consent but believing
she did consent, he was not guilty of rape even though he had no reasonable
grounds for his belief: Mr. Morgan brought three men from a pub to his home and
requested that they have intercourse with his wife. Mr. Morgan told the men to
ignore his wife's protests or resistance, saying his wife was "kinky." The men forcibly overcame the wife's resistance and each penetrated her without her consent. The three men were charged with rape. Though charged with aiding and abetting the men, the husband was not charged with rape because the marital
immunity was thought to apply. See id.

[FN94]. Offenses Against the Person Act, 1990, c. 11:08 s 32 (Trinidad
& Tobago).

[FN95]. Offenses Against the Person Act, 1990, c. 11:08 ss 37, 48 ( Trinidad &
Tobago).

[FN96]. U.N. Comm. on the Rights of a Child, State Party Report - Trinidad and
Tobago, U.N. Doc. CRC/C/11/Add.10 (Feb. 16, 1996) (stating that under the Muslim
Marriage and Divorce Act, c. 45:02, a girl may marry at 12 and a boy at 16, and
that under the common law, the ages are 12 for a girl and 14 for a boy).

[FN97]. The Government of Trinidad & Tobago Government Online - General
Information, available at http://visittnt.com/General/about/general.html (last
visited Feb. 26, 2006).

[FN98]. Offenses Against the Person Act, 1990, c. 11:08 ss 56-57 (Trinidad &
Tobago).

[FN99]. Paul Nowak, Planned Parenthood Targets Trinidad and Tobago to Legalize Abortion, ttgapapers.com, Aug. 10, 2004, http:// www.ttgapers.com/Article801.html.

[FN100]. Suzanne Shephard, How TT's Laws Cover Common-Law Unions, Newsday
(Trinidad & Tobago), Jan. 22, 2006, http://www.newsday.co.tt/stories.php?
article_id=32708.

[FN101]. See Mindie Lazarus-Black, The Rites of Domination: Tales From the
Domestic Violence Court (The Ctr. for Gender & Dev. Studies, Working Paper No. 7, 2002).

[FN102]. The author personally witnessed the difficulties presented by the courts' case indexing system when she went to the courthouse and was not able to find a case after nearly an hour, despite the presence of numerous clerks. This inefficiency might also point to the problems created by the digital divide that
exists between the Caribbean and wealthier nations like the United States.

[FN103]. Lazarus-Black, supra note 101, at 14-16.

[FN104]. See generally Stephen Heath, Male Feminism, in Men in Feminism 1 (Alice
Jardine & Paul Smith eds., 1987); see generally Engendering Men: The Question of
Male Feminist Criticism (Joseph A. Boone & Michael Cadden eds., 1990).

[FN105]. While this comment is made specifically regarding women in Trinidad, the
abolishing of the divide between social spheres among women as well as the
sameness/deviant divide enunciated by Regina Austin would benefit feminist's
movements worldwide and maximize our efforts.

[FN106]. Mari Matusda, Looking to the Bottom: Critical Legal Studies and
Reparations, in Critical Race Theory: The Key Writings that Formed the Movement
63, 63 (Kimberle Crenshaw et al. eds., 1996).

[FN107]. Lorde, supra note 2, at 54 (stating that these stereotypes have led us to
"turn[] away from the... erotic as a source of power and information...").

[FN108]. See Mary L. Dudziak, Desegregation as a Cold War Imperative, in Critical
Race Theory: The Cutting Edge 106, 106-08 (Richard Delgado & Jean
Stefancic eds., 2d ed. 2000).