Symposium Introduction

Food reflects power relations.

—Chloë Taylor 2012, 113

 

Chloë Taylor’s thinking attends closely to the import of the concrete and the everyday, as this representative citation attests. Her writing on food, for example, involves careful discussions of eating, appetites, and dietary norms, as well as the policing of desires and identities from the alimentary to the sexual. As part of this work, Taylor turns to Michel Foucault for philosophical resources. Foucault writes, “The body . . . is poisoned by food or values, through eating, habits, or moral laws; it constructs resistances” (1984, 89; cited Taylor 2010, 72). As Foucault is positing here, we become aligned with moral ideals when we partake of foods and food-related rituals that are, inevitably and unavoidably, value-laden. (We could ask questions about ourselves such as: Do we choose to eat meat? Why or why not? With whom do we break bread? When and how do we abstain from food? How do we judge others’ food choices?) Foucault’s affirmation of the body as a site of resistance suggests that food and eating might also become sites of emancipation, embodied ways to subvert rather than ingest “poisonous” values. (Here, Taylor’s work prompts us to ask questions about more edifying ways to eat, such as taking up veganism.)

But why turn to Foucault, especially when it comes to urgent questions related to moral values or liberation? Erica Meiners poses this question in the context of this symposium on Taylor’s new book, Foucault, Feminism and Sex Crimes: An Anti-carceral Analysis. Meiners’s question is an existential one, raising the stakes of methodological choices themselves. As Meiners points out, anchoring a project in Foucault means that other anchors might be missed, like activists or artists who might lack the “stamp of anointed Great Thought” but who proffer meaningful models for resistance. This question—Why Foucault?—is also at play in Hasana Sharp’s response, which reminds us of the tendencies of some Foucauldian feminisms to evade the liberatory promises of radical feminism. In both commentaries, this question gains urgency because of the central premise of Taylor’s book in which feminist commitments are aligned, pragmatically and morally, with anti-carceral commitments. What emerges from these interventions—and from this symposium as a whole—is a set of vibrant reflections on feminism, sexuality, gender, justice, and desire, as well as important insights into Foucault’s oeuvre and into our own daily experiences.

The anti-carceral framing of Taylor’s book provides a way to think through an under-theorized aspect of Foucault’s work on criminology and sexology: namely, how the construction of the “sex offender” and other sexual deviants underscores the imperatives of biopower, resulting in more rather than less sexual violence. Three critical prison studies scholars, participating in this symposium, help us to consider the sedimented dynamics by which these imperatives saturate daily life. Kelly Struthers Montford’s response, for example, situates the prison system in its broader historical context: given that colonialism and incarceration are mutually implicating practices, on this account, the anti-carceral project of Taylor’s book must also be a decolonial project. In turn, Katarina Bogosavljevic and Jennifer M. Kilty examine an additional case, beyond the book’s own case studies, in which mandates of biopower lead directly to carceral practices: namely, the case of HIV nondisclosure. As their response highlights, anti-carceral research includes the very affective and emotional attachments to criminalization that often remain dislodged by academic work.

While these arguments implicate all of us, in our own activities and lives, they bear particular consequence for professionals whose work intersects with carceral systems. Writing as a psychiatrist, Suze Berkhout reflects on the significance of resistance from within prisons, in the form of food refusal. By putting psychiatry itself on the hook in this reflection, Berkhout poses the question, “How might we communicate across difference and restructure our imaginaries in relation to justice?”

While this query gains specific meaning in the context of psychiatry, it is an urgent one for all of us. Rather than a system invested in justice, the carceral system is better described, in Dean Spade’s terminology, as the “criminal punishment system” (2011). Taylor’s anti-carceral philosophy is in solidarity with important feminist work by Spade, Angela Davis (2005), Lissa Skitolsky (2020), and many activist-scholars who call for the abolition of the prison system as a way to further social justice. Prisons, widely understood to be “useless” as mechanisms for undermining crime, are themselves sites of horrific and systemic violence, as Taylor’s book makes persuasively clear. Since reforms of the prison system only serve to reinforce the logics of carceral punishment, abolitionism is a political project that seeks to undercut these logics altogether. What could and should take its place, however, is a pressing philosophical question. This open-ended question, elaborated in various ways by the symposium responses, invites us all to reflect on the stakes of resisting capitalist, white supremacist, ableist, gender normative, and imperialist systems of social control.

 

Works Cited

Davis, Angela Y. Abolition Democracy: Beyond Prisons, Torture and Empire. New York: Seven Stories, 2005.

Foucault, Michel. “Nietzsche, Genealogy, History.” In The Foucault Reader, edited by Paul Rabinow, 82–83. New York: Pantheon, 1984.

Skitolsky, Lissa. Hip-Hop as Philosophical Text and Testimony: Can I Get a Witness? Lanham, MD: Lexington, 2020.

Spade, Dean. Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of Law. New York: South End, 2011.

Taylor, Chloë. “Abnormal Appetites: Foucault, Atwood, and the Normalization of an Animal-Based Diet.” Journal for Critical Animal Studies 10.4 (2012) 130–47.

———. “Foucault and the Ethics of Eating.” Foucault Studies 9 (2010) 71–88.

———. Foucault, Feminism, and Sex Crimes: An Anti-carceral Analysis. New York: Routledge, 2018.

Response

Building Abolition in a Pandemic

Feminism, Foucault and Beyond

I write at the peak of COVID-19 in the United States (US), and with the deep privilege to flee New York City with my cat for a slightly more spacious quarantine in Chicago. Even though I am (currently) healthy and getting a paycheck, the future is still for most at best, murky. No vaccine, skyrocketing unemployment numbers, growing food bank lines—and as this is the US, little access to COVID-19 testing, no accessible healthcare, no rent freezes, no universal paid sick leave, and more. Now is the time to think, write, and act to end sexual and gender violence: There is no clearer evidence of this urgency in our COVID-19 moment than the ubiquitous messaging: stay at home.

With the exception of the current US president and related fringe contingents, the prevailing public health mantra is to social distance. Yet with no formalized paid sick leave and likely no health insurance, many low-wage disproportionately non-white frontline workers—janitorial staff and cleaners, public transit employees, attendants and caregivers, agricultural workers, grocery store staff—work, likely even when sick. Even for those with a home, staying inside doesn’t necessarily promote health or safety. The US Department of Justice document that almost 80 percent of all reports of child sexual violence, for example, identify the home as the site of harm.1 For many women, their intimate male partner is the primary person responsible for harm in their own home.

Quarantine regulations and laws in the US often referred to as “shelter in place orders,” far from safety, ignite the conditions for more gender and sexual violence. If people cannot leave, cannot connect with others, cannot got to a worksite or a neighbor’s apartment—vulnerability is exacerbated. And, of course, stress—rising from unemployment, xenophobia, global uncertainty, isolation, illness, and more—creates the conditions that fuel conflict and harm.2

For many, gender and sexual violence is so hyper-visible—banal, expected, everyday—we learn to not acknowledge or to not recognize its ubiquity, but like the prison-industrial complex and racial capitalism, gender and sexual violence is always a pandemic. Foucault, Feminism, and Sex Crimes: An Anti-Carceral Analysis offers another timely and rigorous reminder that it is past time to build meaningful movements to end gender and sexual violence.

Prior to reading the project, I was struggling. Why Foucault as the axis to make this argument? Why center such a detailed engagement of the limits of our carceral state to meaningfully respond to gender and sexual violence squarely in the domain of Foucault? As an organizer who dodges in and out of academia, the value of any traditional scholarly project waxes, and more often than not, wanes. Prior to reading Taylor’s book, I’d likely have hovered in one of the “feminist” Foucauldian rooms Taylor sketches out early in the project—dismissal or disaffection due to Foucault’s lack of engagement with feminist and anti-racist thinkers and questions, his seeming trivialization or outright dismissal of the impact of (child) sexual harm (perpetrated by cisgender men), and for most of his life his privilege/refusal to engage in collective grassroots political action (not the work of philosophers . . .). While I couldn’t imagine writing or teaching without Foucault in the years after graduate school—his thinking is one powerful imprint on all of my practice—lately authors like these seem musty, less useful, in the circles I now teach and learn within. Why dance with Foucault when Sharene Razack is available? Dorothy Smith? MNourbeSe Philip? Sylvia Wynter? The collective labour of the Combahee River Collective? Why teach Foucault’s What Is an Author,3 despite its brilliance, when the pleasure of polyphony and the fictions of single-authorship shine through the ’90s-era Vancouver-based queer/mad/feminist political performance art the Kiss & Tell Collective? As I orbit farther away from the academy—teaching and learning in community—the stamp of anointed Great Thought (always tethered to race, gender, class, ability, sexuality and more) shimmers, and dissipates.

Yet halfway into the project I realized, Why place Foucault as the axis of this project? is totally the wrong question. Why not? Where would be a wrong axis to make this abolitionist argument? It is all an uncedable terrain, as this book meticulously exemplifies in Foucaultian form, genealogy as a method—an archeology of knowledge. An erasure of these counter-histories has critically material consequences beyond simply the organized contraction and forgetting of our lineages. As Eve Kofsky Sedgewick so wonderfully reframed in relation to discourses that surged in the ’90s about the “origins” of being gay (nature or nurture?), “gay” belongs, intrusively, everywhere, and to no one.

There is no unthreatened, unthreatening conceptual home for the concept of gay origins. We have all the more reason, then, to keep our understanding of gay origin, of gay cultural and material reproduction, plural, multi-capillaried, argus-eyed, respectful, and endlessly cherished.4

Opening up critical genealogies of abolition not only recasts the present but does the imperative work to seed other futures. This turn toward a kind of proliferation doesn’t vacate meaning. Abolition—or queer—cannot simply be absorbed to mean anything to anyone: hiring more female police to do restorative justice work is not abolition.

Foucault, Feminism, and Sex Crimes builds another radical genealogy for our abolitionist labor. While the master’s tools might not take down the master’s house, to paraphrase the Black feminist lesbian writer Audre Lorde, Taylor’s analysis reminds us that perhaps all the tools aren’t exactly the masters to begin with. . . . Taylor assembles a map for Foucault as an abolitionist, an easy enough move, as his texts offer ample evidence.5 Foucault’s analysis has always explored how and why the prison has made itself indispensable, natural, normal. The Birth of the Clinic (1963) and Discipline and Punishment (1975) chart the too-easy slippages between oppressive institutions—the hospital, the school, the prison—engendering biopolitical and discursive regimes of premature death. With Foucault canonically ensconced (at least in departments outside of philosophy) these are necessary students—and courses and readers and audiences. What if Foucault, Feminism, and Sex Crimes was taught in all philosophy and women’s and gender studies classes? How many abolition feminists would we seed? As importantly, how might the trajectories of philosophy and women’s and gender studies move otherwise? And the more genealogies we add or queer, not only are fresh audiences cultivated, but more tools are reconsidered, deployed, and available to build the world we know we need.

On a cursory look it would seem logical that Foucault’s work—for example Discipline and Punishment (1975) and The History of Sexuality (1976–2018)—would be a particularly necessary and central site to stake an abolition genealogy through the prism of “sex crimes,” including sex work. Yet, as Taylor highlights, far from being visionary, his writing here is “surprising and disappointing” and leaves “much to criticize” (73). Yet Taylor argues that engaging Foucault’s abolitionism in this wider landscape, including a parallel body of feminist engagements, provides a necessary counter-history to dive into critical questions surrounding abolition and gender and sexual violence. I am persuaded.

As Taylor outlines, the sweep and the impact of “sex crime” cannot be understated. More than a narrow, isolated faction of our criminal legal system, our current COVID-19 political moment offers just one example of ongoing collateral consequences of our failure—as abolitionists, as feminists—to critically engage the expanding sex offender regime. At the prison where I am at least once a week, as of May 5, at least fifteen people out of a population of 1,252 have died. While medical and temporary furloughs have reduced the population at some jails and even a few prisons across the state, the people in this maximum-security prison are not under consideration for release, or even for extra medical care or protection. This prison stays full in our COVID-19 pandemic—with no possibly of social distancing, no masks, little soap, negligent healthcare—in part through an old form of anti-Black racism, the “worst of the worst”: the specter of (non-white) men who harm cisgender (white) women and children. In reality, many people in this prison are old—with health complications. While most are in prison for charges unrelated to gender and sexual violence (which doesn’t mean they have not perpetrated harm), the fear of impending gender and sexual violence (particularly toward children), and “safety,” is routinely deployed in media coverage that argues against any release, parole, clemency, furloughs, and sentencing reform—even without the lethal urgency of COVID-19. Violent offender, maximum security, life sentence—all are coproduced by the sexual crime regime and consign people, disproportionately poor and non-white, to premature death.

While a growing number of people in the US are incarcerated for sexual offenses, the proliferation of the vagueness of this charge—encompassing child pornography, consensual youth sexual acts, and also sexual violence—doesn’t help us understand what harm has happened, how to support people who have experienced harm, and how to end gender and sexual violence. Yes, gender and sexual violence is a pandemic, but as Taylor demonstrates by harnessing Foucault and his constellation of near and far interlocutors, imprisonment isn’t a solution.

This regime continues to deepen in part because some advance criminalization and punishment as just and feminist responses to sexual and gender violence. Hardly solely the responsibility of carceral feminists, but the explosion of the regime of sex crimes—banishment laws, public registries, spiraling sentences—required at least their tacit endorsement. Sex work is folded into this domain of gender and sexual violence, a turn carceral feminists do not question. Taylor expertly grapples with competing allegiances—to Foucault’s prescient abolitionism, to feminist’s clarion recognition of the pervasiveness of gender and sexual violence—and divergent responses. Far from letting either (carceral or otherwise) feminists or Foucault of the hook, Foucault, Feminism, and Sex Crimes uses this dialectical engagement to craft a strong pathway for readers toward abolition feminism.

The feminist foundation of abolition is the practice of the both/and: dismantling systems and structures that do not support us to flourish while at the same time building other ways of relating, and other systems, to create accountability and to end harm. There is no abolition without feminism and none of my feminism without abolition.

Far from utopian, throughout the project, particularly at the end, Taylor reminds us that abolition is already in practice. Some feminists—including those queer, non-white, involved in sex work, undocumented—have always recognized that not only does the state not have any meaningful strategy to address gender and sexual violence, but the policing, social services, imprisonment “solution” offered by the state often makes a bad situation worse. The criminal legal apparatus, at best, uses the interpersonal harm individuals experience—sexual violence, for example—as fuel for racialized carceral expansion, and at worst, as the Survived & Punished organization documents,6 criminalizes those who survive. Surveying a wide range of organizations, scholars, and most importantly transformative justice practioners, Taylor offers a rich contemporary snapshot of the diverse range of abolitionist practice currently underway. Never perfect, the networks Taylor highlights, Black & Pink, GenFIVE, and many more, continue to deepen the practice of building responses to harm and violence outside of the state: transformative justice and community accountability. Abolition feminism is this long genealogy to both unmake systems that reproduce harm while germinating and circulating the tools and the politics that foment accountability and transformation.

Additionally provocative and useful is Taylor’s engagement with posthumanism. Often intentionally siloed from abolitionist scholarship and practice, and generally excluded from contemporary intersectional feminism, critical animal liberation studies (and other names for this body of work and movement) unpacks the logics that scaffold how and why animals are caged, tortured, confined, and slaughtered, providing key insights into the grammar of oppression. Sunaura Taylor, in her political memoir Beasts of Burden: Animal and Disability Liberation, makes this case:

Unless disability and animal justice are incorporated into our other movements for liberation, ableism and anthropocentrism will be left unchallenged, available for use by systems of domination and oppression.7

Abolition and feminism, inseparable, are unfinished without a rigorous excavation of the ableist and anthropocentrist contours of everyday life, liberal humanism.

Finally, and perhaps contradictorily to some, while I struggle to think and act outside of the immediate COVID-19 pandemic, this counterhistory is a clarion reminder that we cannot afford to rest in the present political moment. We must anticipate and collectively resist the futures that are already being built from this “crisis.” While COVID-19 has drawn further exposure, and increased resistance, to already existing repressive powerlines—overflowing tent cities juxtaposed next to empty five-star hotels—this pandemic also provides cover for a restructuring that potentially deepens and extends existing inequalities. The script is already being written: the expansion of surveillance and policing powers and the intentional overlap of public health and criminalization. Building an abolitionist future beyond policing and punishment requires that we think and act in the present. Tracing radical genealogies makes these different practices, now, more imaginable, possible.


  1. US Department of Justice, Sexual Assault of Young Children as Reported to Law Enforcement (2000), https://www.bjs.gov/content/pub/pdf/saycrle.pdf.

  2. See for example, media coverage on reports of an uptick in gender and sexual violence, https://www.nytimes.com/2020/04/06/world/coronavirus-domestic-violence.html.

  3. Michel Foucault, “What Is an Author,” in Language, Counter-Memory, Practice: Selected Essays and Interviews (New York: Pantheon, 1980).

  4. Eve Kofsky Sedgewick, Epistemology of the Closet (Berkeley: University of California Press, 1990).

  5. See, for example, earlier works such as Angela Y. Davis, “Racialized Punishment and Prison Abolition,” in A Companion to African-American Philosophy, ed. Tommy Lee Lott and John P. Pittman (Oxford: Blackwell, 1988).

  6. Survived and Punished, https://survivedandpunished.org/freethemca/.

  7. Sunaura Taylor, Beasts of Burden: Animal and Disability Liberation (New York: New Press, 2017).

  • Chloë Taylor

    Reply

    Response to Erica Meiners

    I would like to start by thanking Ada Jaarsma for organizing the panel on Foucault, Feminism, and Sex Crimes at the Canadian Society for Women in Philosophy just over a year ago, from which several of the commentaries below derive, and also for organizing this expanded symposium on the book in the forum offered by Syndicate. Thank you, Ada, for your continual generosity with your time and energy, and for your enthusiasm and support.

    In early May, Erica situated the writing of her commentary at the “height” of the pandemic. Sadly, so many months later, the pandemic continues with no end yet in sight. As in May, I agree with Erica that in the current moment, between the Covid-19 pandemic and the ongoing horrors of the Trump regime, it is difficult to think or write about anything else. And yet, as Erica observes, the pandemic has meant ubiquitous calls to “stay at home” to remain safe, ignoring the fact that for many people staying at home is not an option, and that for women and children home is not a place of safety to begin with. On the contrary, as feminist scholars have observed for decades, home is the most likely place for women and children to encounter violence, including sexual and lethal violence. As Erica also writes, Covid-19 simultaneously underscores the necessity of prison abolitionism, as the pandemic exacerbates the injustices of the carceral state, and the disregard with which prisoners are treated, and so we witness prison sentences becoming death sentences, social and civil death becoming biological death. Erica thus argues that the pandemic makes this a timely moment to think about gendered and sexual violence, and how we can respond to this violence in noncarceral and decarceral ways.

    Whether engaging in a painstaking dance with Foucault in order to attend to these issues is a compelling way to respond is, however, an open question. Erica therefore continues her commentary by raising the questionability of my choice of Foucault as my primary dance partner in this book, given the availability of the anti-racist, anti-colonial, and queer feminist dance partners whom she names. Why choose the “musty” old Foucault, when there are these live, fierce and sexy women to dance with? I am grateful to Erica’s generous reading of my project, and her conclusion that dancing with Foucault was ultimately worthwhile. Her initial skepticism however reminds me of how some of my students, particularly students of colour, challenged me in the context of a 2016 Women’s and Gender Studies / Gender and Social Justice Studies seminar for beginning the course on prison abolition by teaching the entirety of Discipline and Punish. As they pointed out, in so doing I gave not only first place but also significantly more time to a white upper-middle-class man who was never incarcerated, and whose writing on prison ignored race and gender, than I gave to any individual author of colour, or to current and former prisoners.

    In 2016 I saw my students’ point but also defended my choice, noting that so many of the Black feminist, Indigenous, queer, critical trans, and critical disability studies scholars whom we read in the remainder of the semester built their arguments on those of Foucault. If Angela Davis and Dean Spade found it useful to read Foucault to critique the prison, shouldn’t we? In particular, these scholars take up Foucault’s work to argue that the prison is not broken but is functioning just as it is meant to. How these more recent scholars see the prison functioning—as a tool of white supremacy, of settler colonialism, of gender normalization and administrative violence—is different from how Foucault saw the prison functioning, but the structure of their arguments is inspired by his. Moreover, although Foucault never risked incarceration in a prison, his interest in institutions of confinement began with psychiatric hospitals, which he argued are other prisons, and are often situated in prisons: prisons, including designated psychiatric wings of prisons, incarcerate more mentally ill people in the United States today than “regular” psychiatric hospitals, and are a type of prison in which Foucault had, in his lifetime, risked being confined. In the book I similarly defend my detailed engagement with Foucault—despite his sexism, despite his glaring failure to engage with race, and despite the offensiveness of many of his comments on sexual crime.

    Despite these defenses of teaching and writing that continues to centre a canonical dead white male philosopher, I also felt and continue to feel compelled by the critiques my students raised regarding the ongoing privileging of Foucault’s work and, as Erica writes, the tradition of so-called Great Thought generally. While Erica writes that she was persuaded of the value of the project, and although I continue to see some merit in it, I admit that I began the book when I had just completed a PhD in philosophy, which is a discipline, particularly in the continental tradition, in which students are trained to choose a canonical figure and to engage in philosophy as a kind of fan fiction to that almost always male author. This is true even for graduate students engaged in feminist philosophy, which tends to be Levinasian feminism, Foucauldian feminism, Derridean feminism, and so forth. I chose Foucauldian feminism. I continued to write the book during my first two academic appointments as an assistant professor of philosophy, but by the time I finished the book, I was an associate professor of women’s and gender studies, where I teach in a gender and social justice graduate program, and had disengaged to a large degree with institutionalized philosophy. Following the catastrophe of beginning a prison abolition course with Foucault in my new intellectual setting, I don’t teach Foucault anymore other than through secondary literature; and had I begun this book now, I would certainly have written it otherwise.

    At the time when I began and wrote much of this book, I was an editor of the journal Foucault Studies, and a two-time organizer of the Foucault Circle, and I was continually struck by the carceralism as well as the psychologizing tendencies of many feminist Foucault scholars—and, this is one thing that has not changed: in my new academic home in a women’s and gender studies department, I have continued to be struck by the carceralism of some of my feminist colleagues. Despite Foucault’s powerful critiques of both the prison and the psy- disciplines, feminist Foucault scholars in the discipline of philosophy, like many academic feminists more generally, regularly assume that the prison is the only, inevitable, or best way to respond to sexual crime. I was puzzled by this much as I am puzzled by the frequent combinations of Foucault and Freud/Lacan that do not engage with Foucault’s critiques of the psy- sciences. Although Erica writes that “assembling a map for Foucault as an abolitionist” is an “easy enough move, as his texts offer ample evidence,” this is apparently not obvious to Foucauldian philosophers. In fact my situating of Foucault as a prison abolitionist resulted in one of the strongest critiques that I received of the manuscript at the peer review stage with Routledge. Although I agree with Erica that Foucault’s abolitionism is clear, I was repeatedly challenged by philosophers that Foucault never explicitly described himself as an abolitionist, and never made a categorical argument against incarceration. One philosopher even argued with me that Foucault was not even interested in prisons, but only in the prison as a paradigm of power. I was obliged, in revising the manuscript, to defend my position that Foucault’s work on the prison is abolitionist.

    What I also found was that among Foucault scholars, Foucault’s writings on prisons were almost never taken up to discuss actual prisons. Many Foucault scholars, including Foucauldian feminists, were mostly eager to engage with Discipline and Punish to talk about other sites and practices of disciplinary power that were more likely to impact their own middle class white lives, and honed in on Foucault’s suggestion at the end of the book that the forms of power that characterize the prison are in fact diffused throughout modern Western society and characterize other institutions. Feminist Foucauldian philosophers have for example taken up Foucault’s work on the prison to describe the family, femininity, and weight-loss dieting as disciplinary institutions or practices, while virtually never attending to actual prisons. In nearly the same breath as these philosophers will describe femininity as a prison-like phenomenon of disciplinary power, they will lament that a sex offender was not locked up in an actual prison for life.

    My students have been similarly eager to read Discipline and Punish in order to write papers on Facebook, monogamy, ballet training, and the university as panoptic and disciplinary. They have been keen to see themselves as “prisoners,” and the university and their ballet classes and social media as sites where their bodies and souls had been made docile. On the other hand, they have virtually never been interested enough in thinking about literal prisons or actual prisoners to write on these topics. Even within the context of a prison abolition course, many students chose to write on the university as a prison. I am not dismissing extensions of Foucault’s arguments to study institutions and practices which he did not himself discuss, and not only because Foucault invites us to do this at the end of Discipline and Punish. I have myself engaged in such extensions of his work, discussing, for instance, meat-eating as disciplinary and animal agriculture as a site of carceral power. That Foucault was interested in actual prisons and prisoners as well as prisons as a paradigm of modern power, however, seems to have escaped or simply not concerned most Foucauldian philosophers and students of Foucault, and initially it was for this audience that I was writing. This is why I spilled a lot of ink arguing a point that, within the prison abolitionist literature, I agree is quite obvious.

    Because my book on feminism, prison abolition, and sex crimes was written for a primarily academic audience, and for feminist philosophers in particular, I am grateful that Erica and her coauthor Judith Levine have recently published their own book on this topic, The Feminist and the Sex Offender: Confronting Sexual Harm, Ending State Violence (Verso, 2020). This work covers similar terrain to mine, striving simultaneously to end gender and sexual violence and the state violence that is incarceration, but it is written for a movement rather than academic audience.

Response

Anti-carceral Gender Politics

*Content warning: rape & sexual violence.

 

First, I want to thank Chloe for the clear and powerful analysis in her book, Foucault, Feminism, and Sex Crimes: An Anti-Carceral Analysis (Routledge, 2019), which points the way forward for a prison abolitionist feminism. I found myself deeply persuaded by the claims that animate this book: if you are against sexual violence and rape, you should be against the prison. Prisons, simply put, are the places in which rape is most likely to occur, and in which a culture of rape is normalized. Although rape is often cited as one of the primary social evils that the prison is meant to cure, it is in fact responsible for producing rapists and increasing rather than ameliorating sexual victimization (Taylor, 17). Furthermore, if we want to address sexual violence, prison and police are too often the perpetrators rather than the protectors of those populations most vulnerable to sexual violence: Black, Indigenous, and women of color, sex workers, queer, and trans folks. Amplifying the presence of police and expanding the functions of prisons exacerbates the racist and heterosexist social forces with which intersectional feminism ought to be most concerned. In short, prisons and the system of policing and punishment for sex crimes and misdemeanors produce and reinforce sexual, gender, and racial domination. Certainly, feminism emerges from a strong objection to violence against women: it is a resounding “no” to domestic violence; a “no” to the subtle and overt violence of forced gender conformity; a “no” to rape; a “no” to child abuse; a “no” to sex trafficking and sex slavery; and “no” to forced pregnancy. But how do we enforce this “no”? And how do we generate and proliferate a panoply of feminist “yeses”? Below are some still scattered thoughts and questions:

Power & Prisons

Famously, Foucault describes the modern soul as a “prison of the body.” As Chloe Taylor writes in her book:

The shift from sovereign power to biopower marks a qualitative change, or entails that we punish differently. In particular, Foucault argues that while sovereign power brutally and directly attacked the body of the condemned, disciplinary power only incidentally detains and controls the body; its real target, however, is the soul. . . .

The prisoner can leave the prison walls precisely because his soul has become a prison that will keep his body docile. He will carry the routine of the prison with him to the outside world. (116–17)

Moreover, the disciplines and techniques for producing and managing subjects developed in the prisons are exported to other institutions, which come increasingly to resemble prisons. So, we see the deployment of “resource officers” in schools, the arrests of children for small infractions of rules, the use of solitary confinement upon disabled students, and the authorization of specialists of the soul by families, courts, schools, and hospitals. The disciplinary practices turn some into experts at self-management and others into deviant objects of knowledge for the social, medical, and penal sciences.

When we reflect on the history of feminist-philosophical engagement with Foucault, it is not terribly surprising that he would be embraced especially by those emerging from phenomenology and French existentialism. Foucault’s analysis of productive power in the History of Sexuality and the discussion of disciplinary power in Discipline and Punish are fantastic resources for making sense of the production of gendered subjectivity. Many feminist Foucauldians draw upon his conception of power as an alternative to liberal as well as to traditional Marxist models. For many Foucauldian feminists, we ought not understand resistance to oppression as a direct confrontation between the powerless and the powerful. Rather, social change requires a complicated transformation of the many forces—internal and external—that make us what and who we are.

Foucault’s concepts of productive biopower along with his analysis of the constitutive effects of disciplinary power are obviously in tension with classical liberal models of power. Power is not a thing, like a good, that might be equitably distributed. In addition, because liberals are historically most concerned about the threat of state totalitarianism, they arguably exaggerate the power that the state plays in shaping our lives. The classical liberal model represents state power as, ideally, negative: it should prevent harm and reduce conflict, but it should not take on too strong of a role in shaping social ideals and aims. Liberal feminists challenge the anti-interventionism of traditional liberals by alerting them to the dangers of not regulating the private sphere. Liberal feminism thus calls for better state intervention to correct the asymmetries of power in the home as well as in civil society, the domain of wages (e.g., Okin, Justice, Gender, and the Family). Liberal feminists are particularly concerned with the lack of prosecution for domestic violence and sex crime. And, for good reason, feminist despair at the impunity of rapists and sexual assailants is far from confined to liberal feminism. It is difficult to find a place for the passions that daily confront us when we daily encounter evidence of the indifference of police, the courts, and the public to the violence against women, which is magnified when those women are Black, Indigenous, transgender and/or poor.

But Taylor points out what is perhaps a surprising alliance. If you are a reader of feminists with a strong debt to Foucault, such as Amy Allen, Wendy Brown, and Judith Butler, you would not expect to encounter an implicit alignment between Foucault and US radical feminism of the 1960s and ’70s. But with respect to Foucault’s prison abolitionism, there is an affinity between Foucault and early radical feminism. In Taylor’s words:

Initially American feminists took a more radical stance on sexual and domestic violence—arguing that violence against women was a fundamental component of the social control of women, that the solutions to rape and domestic violence rested on a complete overhauling of the relations between men and women and that the reliance on the state for solutions risked cooptation. (94)

Many American feminist organizations, in their efforts to provide services to women, eventually became aiders and abettors of state intervention. But early, radical feminist analyses emphasized how a diverse range of social institutions collude to produce the subordination of women and reinforce the sex-gender system.

Considered in the abstract, the affinity between Foucault and early radical feminism around prison abolition should not be surprising. Although Foucault is often called a post-structuralist, he owes a debt to the kind of structuralism that guides radical feminism, with its roots in Marx, Freud, and Lévi-Strauss. Indeed, I can imagine a radical feminist declaring that gender is the prison of the body. My imagined radical feminist might also decry the proliferation of the gender police and gender specialists who have been appointed across a range of social institutions: the family, schools, hospitals, and detentions centers. But those feminists whose names I most strongly associate with Foucault are rather unforgiving critics of radical feminism. They accuse radical feminism of relying on naïve and simplistic models of power. For radical feminists, according to the Foucauldian feminist, men are wielders of power and women are innocent of power. Radical feminism stands guilty of moralizing power relations, representing men and power as bad, and women as mere epiphenomenal effects of patriarchy’s ambitions (Brown, States of Injury). They like to point out Catharine MacKinnon’s provocative assertion: female power is “a contradiction in terms, socially speaking.”

But with its focus on social norms, psychic internalization, and the capillary nature of power to produce gendered subjectivity, perhaps phenomenological feminism loses sight of the macro-forces that need to be confronted? In my view, the Foucauldian feminists are characteristically uncharitable when they take radical feminism to task for “presuppose[ing] a dyadic conception of domination, according to which individual women are subject to the will of individual men” (Amy Allen, “Feminist Perspectives on Power,” Stanford Encyclopedia of Philosophy). If we emphasize radical feminism as it was in its origins—“a ruthless critique of everything existing”—we can recognize it as part of an abolitionist project.

Recall how Shulamith Firestone, in her Dialectic of Sex, imagined a world that did not socialize children according to gender, that freed women from any biological role in reproduction, and ultimately eliminated what she called “the sex-distinction.” Radical feminism has always foregrounded the problem of violence against women, but characteristically it does not imagine the solution on the model of justice. In other words, the Dialectic of Sex is not a call for improved delivery on the promise of equality or mutual respect. It thus does not call for the protection and recognition of rights by the state. It is an exhortation to comprehensive social change. In the words of Firesetone, “If there were another word more all-embracing than ‘revolution,’ we would use it.” “The end goal of feminist revolution must be not just the elimination of male privilege but of the sex distinction itself: genital differences between human beings would no longer matter culturally.” Rather than a demand for equality, radical feminism calls for a liberation from gender. In a word, they called for gender abolition. They were not naïve about how comprehensive the transformation would have to be. Or the extent to which our individual and collective imaginations would have to lose their tethers to the most basic social or even natural givens. Echoing the words of Foucault on the prison, Firestone imagines the response to her exhortation to end the biological determination of sex roles: “That!? Why you can’t change that. You must be out of your mind!”

Abolitionism

Along with Black feminism, radical feminism historically rejected prison as a solution to violence against women. According to their systemic analysis, the problem of sex-based oppression is not explained by malicious individuals or ameliorated by empowering state repression. But, of course, we now know of radical feminist projects that did empower the state to suppress the circulation of pornography, which was understood as a key agent in the production of rape culture. And the prosecution of pornography consumption and distribution disproportionately targeted queer and feminist bookstores, which were promoting alternatives to the very compulsory heterosexuality to which radical feminism so staunchly objected. Some radical feminist projects ended up undermining the revolutionary ambitions that previously defined radical feminism. And today, in the popular media, the most vocal self-proclaimed “gender abolitionists” are the so-called Gender Critical Feminists (GCF, also known as trans-exclusive radical feminists, or TERFs). Unlike the radical feminists with whom they identify, GCFs strongly align gender abolitionism with carceral arguments.

Without giving too much space to their platform, I will mention a couple of the planks relevant to this discussion. First, GCFs deny the desirability and reality of transgender identity. In the name of gender abolitionism, they see the recognition and protection of transgender identity to be reactionary. Thus, they claim that feminists should resist cultural and legal efforts to recognize a diversity of genders and especially the right of trans women to be legally recognized as women. Sometimes they defend this position with a bunch of philosophical terminology in effort to persuade their readers that it is incoherent to recognize trans women as women. But, more often, they motivate their position by invoking the dangers that the recognition of diverse gender identities pose to cisgender women: in particular, they invoke the threat of sexual violence. One of their central commitments is to advocate for the exclusion of trans women from women’s shelters and prisons. Although trans women are disproportionately victimized by domestic violence, carceral, and police violence, as well as by sexual assault, Gender Critical Feminists represent trans women, first and foremost, as perpetrators of sexual violence. GCFs emphasize the deceptive and untrustworthy character of trans people, mirroring the state’s mobilization of grotesque power against queers, gays, lesbians, and gender-non-conforming people, that Taylor describes in chapter 6 of Feminism, Foucault, and Sex Crimes. The alarm they sound about the threat that trans women pose to prisoners, represents those most vulnerable to violence as those most likely to perpetrate violence. Likewise, this rhetorical move obscures the profound harms that incarceration and the police perpetrate, especially against members of disadvantaged communities. This diverts criticism from the carceral state as a site of sexual violence and deprivation for two of feminism’s principal constituencies: women and children.

But might we, just as Taylor encourages us to understand prison abolition positively, strive to imagine gender abolition positively? Could freedom from gender and the transformation of those institutions that violently enforce gender be grasped as something other than a project of subtraction and restriction? When Firestone yearns for the sex-distinction to cease to matter, to no longer be relevant, does this imply an imperative to ban gender? To get rid of it? This seems to be what the GCFs imagine. They insist that (dimorphic) sexual morphology matters legally, but otherwise argue to restrict the affirmation and recognition of gender diversity. They advocate for the erasure of gender. But what if freedom from biological determinism (or the social ideas about what biology entails), a goal shared by all feminists, does not imply the erasure of gender? What if it calls for a more positive project? Revolution, after all, is not solely a destructive practice. It is a constructive project of bringing a better world into being.

Indeed, prison abolitionists do not describe their ambition as destructive. Rather, prison abolitionism is a “positive” project, “an aspirational” ethics that generates many social strategies and, importantly, engenders a new social imagination. Can we imagine a positive gender abolitionism? One that doesn’t deny the desirability of gender identity or self-expression? When we imagine a world without those institutions that forcefully segregate and socialize us into dominant and subordinate genders, can we also picture a proliferation of new social forms that enable us to live gender in a proliferating variety of ways?

  • Chloë Taylor

    Reply

    Response to Hasana Sharp

    I would like to thank Hasana for the history of radical feminism that she provides in her response to my book, and for her situating of prison abolition with respect to this history. What I have argued in the book is that although Foucault is an unlikely ally of feminists in general (and not only radical feminists), as feminists we should in fact be engaging with his prison abolitionism. Sharp highlights the reverse argument: while radical feminism may seem like an unlikely ally of Foucault, in fact there are ways in which radical feminism shares intellectual genealogies and goals with a Foucaultian prison abolitionism, and so a Foucauldian abolitionism does well to draw on radical feminism as a resource, as I occasionally do in the book.

    As Sharp also notes, although early radical feminists did critique the prison and recognize that it was not the solution to gendered and sexual violence, radical feminism is more well-known for its calls for another kind of abolition—the abolition of gender. In particular, Sharp cites early radical feminist Shulamith Firestone, who called for a world where variations in genitals would be of no significance. I think that Foucault’s argument for “desexualization” could be useful here, and might be extended to “degenderization,” or an indifference to gender such as Firestone endorses. And yet, as Sharp goes on to note, we also need to distance ourselves from a particular form of radical feminism, and the form of gender abolitionism that this radical feminism has taken: Trans Exclusive Radical Feminism, which resists the legal recognition of trans people, and the recognition of trans women as women in particular.

    Significantly, as Sharp notes, trans exclusive radical feminists often make their arguments in a carceral context, insisting that housing trans women with cis women in women’s prisons puts cis women at risk of sexual violation, when in reality it is trans women who are at risk of sexual violence from guards and other prisoners in whatever prison they are placed, and especially in men’s prisons. Rather than discussing what kinds of prisons trans prisoners should be placed in, however, I would like to cite CeCe McDonald, who stated at a 2014 conference:

    I know people kind of want to sensationalize the fact that I was a transwoman in a men’s prison. . . . I just want to say that all prisons are fucked up. It wouldn’t matter if I went to a women’s prison . . . you know, they’re talking about building a new trans prison in California? It’s like, no prison is safe for no one. You want to capitalize off of me through a fucked up system? And I’m not having it. . . . I would rather die than go to any prison. . . . There is no way that you can convince me that being in a men’s prison or being in a women’s prison, or being in a trans prison, being in a fucking unicorn prison, I don’t care. It’s not beneficial to anyone. It’s not beneficial me, it’s not beneficial to you, it’s not beneficial to our community.1

    The gender abolitionism of TERFs who argue, not for the abolition of all prisons as sites of gendered, sexual, racial, colonial, and ableist violence, but rather for the housing of transwomen in men’s prisons whose legitimacy they do not contest, is not in fact gender indifference or gender abolitionism as Firestone imagined it, since it insists upon categorizing people according to genders assigned at birth on the basis of biology and the legal importance of genitals. At the same time, this form of gender abolitionism remains indifferent to how people identify, to facts about who is vulnerable to whom, and to the realities of prisons.

    Helpfully, Sharp suggests that feminism should follow prison abolition in understanding gender abolitionism differently than TERFs have done. While the gender abolitionism of TERFs is merely negative or eliminatory, we should follow prison abolitionists in stressing abolition as a constructive and aspirational project. For Sharp, an aspirational gender abolitionism would strive to create a world in which a variety of genders could proliferate.

    Although, as I did in the book, I indeed want to stress that decarceration is most significantly a constructive, aspirational, and socially transformative project, prison abolitionists do actually want to get rid of prisons, a penal approach to justice, and the racist/colonial institution of the police. Similarly, I think that a gender abolitionism that Sharp is sketching would also want to hold onto something eliminatory, even with respect to gender identities. I think that it would want to eliminate some forms of gender, such as the toxic forms of masculinity that perpetuate violence against women, children, and queer and trans people. To be clear, we do not strive for a world in which toxic masculinities would proliferate, would be freely chosen, supported, expressed, or celebrated. Moreover, as Sharp notes, gender abolitionism as I imagine it would want to eliminate the regulation and assignment of gender, and, surely, phenomena such as gender reveal parties, paperwork and ID with gender categories, and so forth. That said, I agree with Sharp that just as prison abolition would do much more than eliminate prisons, but aspires to transform society in a number of ways that would prevent the kinds of harm currently constructed as crime from occurring in the first place, so gender abolitionism should do much more than these eliminatory tasks. It should support people to express gender (or, if they prefer, to not express gender, to be indifferent to gender) beyond the binaries of masculinity and femininity, man and woman, male and female, and beyond relegations to these categories based on biological traits.

    Thinking about how the two forms of abolitionism might intersect, I am again recalling my 2016 seminar on prison abolition, in which we read about the closure of the Prison for Women in Kingston, Ontario, in Canada, and its replacement with a number of reformed federal prisons for women dispersed across the country. The reformed federal prisons for women were designed based on input from a committee that included members of the Elizabeth Fry Society, formerly incarcerated women, and Indigenous women. While women who had experienced incarceration suggested to the committee that one way that prisons should be reformed is that they should no longer be sex segregated, this suggestion was never seriously entertained by the committee as a whole, most of whose members saw incarcerated women first and foremost as victims of male abuse. The federal women’s prisons that this committee imagined were to be places of empowerment and healing from the male violence and manipulation that led women into lives of crime, rather than spaces where such violence might be experienced anew.2

    When this topic came up in my seminar, I recall that all of the women’s and gender studies and gender and social justice studies students agreed that prisons—and all sex-segregated institutions—should be desegregated, not only since, based on what we were reading, incarcerated people do not want this segregation and such segregation serves a eugenic purpose, but also because all such institutions reinforce a gender binary society. This group of students, like Shulamith Firestone, aspired to a society that was not divided into (only) men and women (biologically defined), and so opposed any institution that reinforced that way of categorizing people and policing gender. In contrast, it was interesting that criminology students in the seminar assured the other students that this was naïve, and that prisons simply could not function without sex segregation.

    In fact I think that the claim that prisons could not function without sex segregation is untrue and based on ways that incarcerated people are stigmatized. And yet if it were true, I would follow a style of argument that legal scholar Gabriel Arkles has made.3 Arkles argues that prisons cannot operate without sexual violence, since nonconsensual strip searches, including body cavity searches, are necessary to control problems of contraband within a carceral context, and are also a form of sexual assault—even if those perpetrating the searches do not see them as such. Prisons, then, cannot operate without the systematic perpetration of sexual assault, and since prisons (as harmful and oppressive institutions) are not important enough to justify sexual assault, then the sexual violence of prisons gives us one more reason to abolish the institution. Similarly if it were the case that it was unfeasible to operate prisons without segregating them according to sex, and since prisons (as harmful and oppressive institutions) are not important enough to justify reinforcing the harms of a sex segregated society, this gives us yet another reason to abolish prisons. As such, not only does the literature and activism of prison abolitionism give gender abolitionists a model for aspirational abolitionism on which they can build, as Sharp suggests, but the prison as sex-segregated institution also gives prison and gender abolitionists a site where they can unite.


    1. Cece McDonald, “The Struggle for Trans Liberation: A Conversation with CeCe McDonald,” 2014, http://youtu.be/emx5iHwbPOg.

    2. Stephanie Hayman, Imprisoning Our Sisters: The New Federal Women’s Prisons in Canada (Montreal: McGill-Queens University Press, 2006).

    3. See Gabriel Arkles, “Prison Rape Elimination Act Litigation and the Perpetuation of Sexual Harm,” Legislation and Public Policy 17.4 (2014) 801–34, and Gabriel Arkles, “Regulating Prison Sexual Violence,” in Northeastern Public Law and Theory Faculty Research Papers Series 233, paper 19 (2015), http://lsr.nellco.org/nusl_faculty/19.

Response

Colonial Caging

Law, regraded by the West as its most respected and cherished instrument of civilization, was also the West’s most vital and effective instrument of empire during its genocidal conquest and colonization of the non-Western peoples of the New World.”

—R. A. Williams Jr. (1992, p. 6)

 

Settler colonialism, then is not just reductive, it is productive, actively producing both the settler state and its accompanying legitimating narratives.

—H. K. Stark (2016, n.p.)

 

This response to Chloë Taylor’s 2018 Foucault, Feminism, and Sex Crimes uses the book’s main themes—that the response to sex crimes in the form of the criminalization and imprisonment of those charged is inherently contingent; and, that this carceral response has been made possible because such acts have been psycho-medically formulated as intrinsic expressions of an individual’s identity—to interrogate what I understand to be the phenomenon of colonial caging in the settler territory currently named Canada. I will do so by focusing on the relationship between colonialism, captivity, and ontology to show that the prison both requires and produces ontological orderings of life. Put otherwise, we accept caging as permissible according to the ontologies we have of captive subjects—accounts of life that I argue are deliberate political strategies aimed at instituting and naturalizing settler colonial dominance. I then consider inter-species caging in the location of the prison animal farm to question how the vocation of “farmer” in the settler context of Canada has become an identity, and how this identity is sufficiently strong to have provided the foundation for the re-opening of the prison-based animal agriculture based on false claims of rehabilitation. Rather than a location of rehabilitation, this is a site of both state-sanctioned/directed sexual assault by coercing prisoners into this form of labour which by necessity violates the reproductive autonomy of farmed animals, as well as having historically been a site of interpersonal and interspecies sexual assault by prisoners against farmed animals—a form of assault occurring outside the bounds of official agribusiness vocational training. I conclude by suggesting that the identity of “farmer” could plausibly be pathologized as a sexual criminal due in the very real reproductive manipulations and practices entailed in animal agriculture coupled with the impossibility of garnering animal consent. However, because of animal agriculture’s centrality to territorialization and the reproduction of racialized human supremacy necessary for settler colonialism, this identity is celebrated while its sexual politics remain obfuscated.

Settler Ontology’s Cage

Taylor asks how the prison trades in being self-evident despite being a two-hundred-year-old invention. The same can be asked of animal agriculture in Canada, which as an institution, the laws permitting it, and the animal subjects captive in this location are non-Indigenous. Animal agriculture has been a technique in which private-property relationships to territory and animals were instituted within a larger project of colonial land acquisition and the remaking of the New World in the image of the Old (Anderson, 2006; Kim, 2015; Struthers Montford, 2017). The location of the prison and the animal farm rely on tactics of enclosure, captivity, regulation of the body, and de-animalization as both humans and animals are prevented from engaging in meaningful inter-corporeal relationships of their choosing and that are needed for species-specific flourishing (Guenther, 2013; Morin, 2018; Struthers Montford, 2019). It is the relationship between colonialism and captivity that I would like to explore in light of Taylor’s book.

In Taylor’s conclusion she draws on the work of Lisa Monchalin who shows that in “the Indigenous cultures of the northern hemisphere, no First Nations practiced methods of incarceration and no communities used holding cells for punishment” (as cited on p. 221). By drawing on this example, Taylor does not romanticize pre-contact Indigenous methods of responding to harm, but instead draws our attention to the contingency of incarceration as well as to its distinctly colonial relationship in our setting. Such an approach is instructive in undertaking a genealogical approach to our institutions of captivity. A focus on caging is necessarily a multi-species and racial endeavor as animality, blackness, and humanity are made and remade via carceral practices and institutions such as racial slavery and settler colonialism that are themselves carceral and further authorize caging.

As Taylor has previously written in the context of species hierarchy and eating, it is through captivity that certain ontologies are made:

It is not the case that we first determine that we are superior to non-human animals and then we conclude that we have the moral license to eat them. Rather, it is through our very eating of other animals that we constitute our superiority. According to this logic, we must be superior to other animals since we put them in cages and do horrible things to them. Human superiority is not a fact from which the permissibility of our practices is deduced; on the contrary, human superiority is something which we construct through our instrumentalization of other species. (2010, p. 75)

The prison also animalizes its captives—often constructed as extra-bodily in their dangerousness—as those who cannot be controlled otherwise and thus should be caged (Struthers Montford, 2016). It is then my position that caging is in a particular relationship to ontology.

Following Johanna Oksala (2010), if we approach ontology as inherently political and as always productive, we can ask what ontologies institutions of captivity require and make. In examining taxonomies of race and animality in the United States, Claire Jean Kim argues that the “human-black-animal triad” underlies the human-animal and human-black dualisms. Namely, she draws on the work of Frank Wilderson, who argues that racial slavery “wrought an ontological rupture between the Human and the Black (Slave), rendering the Black ‘the very antithesis of a Human subject’” (2017, p. 9). The human, who in the West is largely defined through the disavowal of his animality, stands as the subject by way of his purported monopoly on consciousness, rationality, speech, relationship to death, and responsibility under the law (Derrida, 2011, 2008). Within such ontological frames, “animal = all body, no mind” (Kim, 2017, p. 3). As Kim writes, “the ‘human’ is paradigmatically both not-animal and not-black, birthed through the simultaneous application of these two caesurae, requiring the presence of both the ‘animal’ and the ‘black’ to locate itself” (2017, p. 9). European colonists and governments have historically positioned Indigenous persons as more animal-like than human. Specifically, colonists in the new world claimed that Indigenous persons were more like wolves than humans on the basis that they lived in the forest, did not farm animals, and did not have private property relationships (Anderson, 2006; Francis, 1997; Kim, 2015). Western ontologies of the subhuman and of animals as non-subjects who exist as propertied resources for humans, have been required to authorize racial slavery, settler colonialism, and its attendant institutions (Ko, 2019). Furthermore, it is the case that these institutions produce the very ontologies foundational to their operation.

This is perhaps what Stark means when she writes that “settler colonialism doesn’t just try to eliminate but in its place, seeks to actively produce something new” (2016, n.p.). These somethings new are necessarily ontological and materially realized in various contexts. Taylor briefly highlights the work of critical race and post-colonial scholars to show how the prison assumes responsibility for racial control. For example, in the United States the control of black persons that occurred through slavery then transmuted into Jim Crow laws, and now occurs via the criminal legal system through the criminalization, mass incarceration, and disenfranchisement of black persons. An ontology structured by the subhuman persists through these transmutations with the continued effect of rendering black Americans carceral subjects. It is just that at present, carcerality has taken the shape of the prison cage. Specific to the control of Indigenous persons, and specifically the quelling of Indigenous sovereignty which the residential school system performed, Taylor, by drawing on the scholarship of Robert Nichols’s (2014) shows that the prison now carries out this function.

Specifically, Nichols (2014) argues that the prison itself is not inherently colonial, but that its application and function in Canada now serves a distinctly colonial purpose. Because the state requires ongoing access to territory, as land is its base for settlement and capitalist extraction, it must constantly prevent Indigenous sovereignty, especially if such sovereignty would result in increased Indigenous control of land. Settler control of territory also seeks to prevent Indigenous ways of relating to land, which for many Indigenous societies “provides the[ir] material and spiritual sustenance” (Coulthard, 2014, p. 58). The prison is a mechanism that, through the mass incarceration of Indigenous persons effectively severs communities and families in much the same way that residential schools did in the past. The hyper state surveillance of Indigenous persons, such as that performed by child welfare services, social workers, police, as well as parole and probation officers coupled with ongoing dispossession and intergenerational colonial trauma functions to stream large numbers of Indigenous persons into penitentiaries and prisons (Hannah-Moffat and Struthers Montford, 2019; Rudin, 2016). By caging such large numbers of Indigenous persons—a historic high reached in January 2020, the building of culturally-specific prisons on reserve lands, and through the carceral expansion of state surveillance and punishment into the lives and communities of indigenous communities, the prison seeks to prevent and manage Indigenous organizing that has as its goal, sovereignty (Nichols, 2014; Office of the Correctional Investigator Canada, 2020; Struthers Montford and Moore, 2018). While Taylor rightly highlights how the prison continues to be important to settler colonial goals of controlling Indigenous persons by criminalizing behaviours such as traditional dances and medicines, I suggest that Nichols’s argument regarding territorialization be refigured to highlight that there was no takeover in form or function from the residential school. Instead, the prevention of Indigenous sovereignty in Canada has been a core function of the prison since at least the late 1800s.

Indigenous resistance to settler governments in both the United States and Canada was criminalized in order to weaken Indigenous political authority and shore up settler sovereignty. This also had the effect of transforming a nation’s conflict to criminal acts performed by individuals. As Stark (2016) shows, following the refusal of the United States to adhere to treaties, corruption in treaty payouts, appalling reserve conditions, and experiencing colonial-imposed starvation, the Dakota declared war on Minnesota in 1862. Thirty-seven days later the Dakota surrendered. Henry Sibley, who had been the governor of Minnesota until 1860, convened a military commission to charge the Dakota with “murder and outrages.” Doing so, however, was both outside his realm of authority, and inconsistent with what was expected, namely that the surrendered Dakota would be treated as prisoners of war. Charged with administering “impartial justice” the commission comprised of military members who had been fighting against the Dakota in the previous days. The trials lasted between five and ten minutes with “392 Dakota . . . tried for ‘crimes’ connected to war, 323 of whom were convicted and 303 condemned to death” (Stark). In Foucauldian terms, these sentences were perhaps too strong a display of sovereignty. President Lincoln ultimately ordered the execution of 38 of those convicted, and they were hanged during the very week that the Emancipation Proclamation to free slaves in the rebellious states was declared. Consistent with Foucault’s (1977) description of the prison coming to replace overt displays of sovereignty, so too was the prison used to “temper draconian sentences . . . while still imparting sentences severe enough to discourage Indigenous resistance and satisfy Minnesotan’s call for revenge” (n.p.). The criminalization of the Dakota transformed them as having been engaged in a nation-to-nation conflict as subjects of settler law who had violated treaty agreements. Doing so provided the state with a legal terrain to remove both treaty rights and the Dakota from their reservations:

The 264 Dakota who had their executions commuted by Lincoln were imprisoned, with an additional 1600 Dakota women, children and elderly men held in an internment camp, with over 300 Dakota dying from the severe conditions. In 1863 the US congress abolished their reservation, declared all previous treaties with the Dakota null and void and began expelling the Dakota from MN. (Stark 2016, n.p.)

Similar tactics were used by the Canadian settler state. For example, Treaty 6 is a diplomatic agreement signed in 1876 between the Crown and the Nêhiyawak (Cree), Nakota (Assiniboine), and Anishinabe (Ojibwa) leaders. It encompasses central areas of present-day Alberta and Saskatchewan and was agreed upon following Indigenous resistance to colonial settlement on their lands, coupled with the decreasing presence of wildlife upon which they relied. Both Chiefs Poundmaker and Big Bear had refused to agree to the treaty before the Government fulfilled its promises. Chief Big Bear also expressed concern that measures such as this were intended to limit Indigenous political authority through the imposition of colonial policy and law. By 1885, tension was rising in Treaty 6 territory because of increasing settler encroachment and starvation policies meant to create Indigenous compliance. The Frog Lake Resistance, otherwise known as the Northwest Rebellion, occurred in 1885 and was a five-month battle against the Canadian government. The Resistance stemmed from the state failing to uphold its treaty agreements, the transformation and enclosure of the prairies, increasing settler presence, and the mistreatment by Canadian Indian Department representatives of the First Peoples in Treaty 6 territory. Indigenous warriors were tried for treason despite the overarching question as to whether they “had been incorporated into Canada” in such a way that they could “commit” treason1 in the first place (Stark 2016, n.p.).

Eight Indigenous leaders were hanged in 1885, including the Métis leader Louis Riel, who had been convicted of high treason. Other leaders, such as Chiefs Big Bear and Poundmaker, as well as thirty-eight others, were convicted of lesser treason-related offenses (e.g., treason-felony) and were sentenced to Stony Mountain Penitentiary. One hundred other Indigenous persons were charged with other criminal offenses and sixty were convicted. As Stark writes, “so many Indigenous people were sentenced following the 1885 resistance that a new wing was built onto the Stony Mountain Penitentiary, and kept full with Indigenous peoples in the years that followed” (n.p.). Colonial states then relied on the spectacle of the public executions of Indigenous leaders to “induce Indigenous nations and their leaders to heel” as well as the symbolic and disciplinary function of the penitentiary to further contain and prevent Indigenous political sovereignty. Yet the state was deliberate in the amount of sovereign power, manifest in the taking of life, it exercised. It did so to prevent settler citizens questioning the state’s actions. Put another way, the reliance on the penitentiary was meant to quell Indigenous resistance while keeping settlers onside. The penitentiary itself also functioned as a display of the power of the Northwest Mounted Police—an institution created with the explicit purpose of Indigenous political suppression—whose agents imposed settler law over a putatively lawless people and their lands. The settler state needed to produce Indigenous criminals in order to shore up, under its own law, the legitimacy and singularity of the settler state, which not only extends its rule over settlers and (most) lands, but in so doing, “claim[s] jurisdiction over Indigenous bodies” (Stark, n.p.). It is then the case that in positioning Indigenous nations as lawless, the state was able to impose “civilized” British law which allowed for the criminalization of Indigenous resistance to colonial rule. As such, the caging of Indigenous persons is at once a distinctly colonial practice in the context of Canada—itself a product of colonialism’s will to enclose—and made permissible through the confluence of ontologies of life and law.

Colonial Spaces of Interspecies Sexual Assault

Foundational prison scholars such as Pat Carlen have referred to women’s prisons as spaces of normative gender pedagogy. Extending this, I argue that we can take the prison animal farm as a site of colonial pedagogy. During the late nineteenth and early twentieth century, Canadian penitentiary wardens asked for land, animals, and prisoners to bolster their farms. They did so with the goal of making these model sites for newly arrived settlers, who would view and then replicate this way of life when homesteading (Struthers Montford, 2019). Taylor’s Foucault, Feminism, and Sex Crimes shows how sexual acts become fused to individuals. With this fusing, these acts are taken to be expressions of an individual’s latent and true inner self. Of relevance to the prison farm is the power of the farmer identity in the settler context of Canada. Animal agriculture, I suggest, is fused to the colonial imaginary as more than a vocation, and in the context of incarceration, as the expression of Canadian exceptionalism (Goodman and Dawe, 2016).

The power of the farmer identity and its place within the Canadian imaginary, I contend, was a driving force to having penitentiary animal agriculture reinstated in Kingston, Ontario, area institutions, despite the national cessation of this program in 2010. The reinstated farms will include cow and goat dairies, as well as slaughterhouse work. Members of the public, who campaigned for penal agribusiness to be reinstated, did so on the basis that these farms uniquely taught prisoners life skills that other vocational programming could not, and that these were economic drivers for the area. Despite empirical evidence showing that animal agricultural work such as slaughterhouse labour is correlated with increased domestic violence, sexual assault, and other forms of violence in the communities where slaughterhouses operate (Fitzgerald et al., 2009), the prison farm remains uniquely positioned as a location from which troubled persons can develop empathy (Correctional Service of Canada, 2016a, 2016b). Put otherwise, the animal farm—a non-Indigenous institution historically embedded in land grabbing, dietary colonialism, the imposition of private property and colonial legal ontologies, and that requires the reproductive and sexual control of animals—was reinstated based on rhetoric that this is a distinctly Canadian approach to punishment, which shows a commitment to rehabilitation and second chances.

Building on Taylor’s argument that sexual assault is common in the carceral settings of the prison and animal domestication, I argue that the prison farm allows us to think about interspecies sexual assault in two manners, reproductive sexual assault and interpersonal interspecies sexual assault. It is the caging of nonhuman others in animal agriculture and their colonial ontologization as objects rather than subjects, which renders them hyper exploitable and vulnerable. First, is that the inherent logic of animal agriculture is one that requires interspecies reproductive sexual assault, namely the farmer’s almost total control over the animal’s reproduction and sexual behavior which often entails the forced ejaculation of male animals, the forced insemination of female animals, and/or the restraining of female animals for mating with male animals (Gillespie, 2014; Stănescu, 2013). Because prisoners have little meaningful choice over what kind of jobs they will be assigned inside, and because refusing to work will be coded as one’s refusal to engage in their correctional plan which outlines programs and training they must complete as part of their rehabilitation and to lower their chance of recidivism, such a refusal will detrimentally impact their chance of early release. In addition to affecting one’s chances for release, conditions inside structure “choice” in prison job participation. For example, prison food is of such low quality and canteen prices for food, clothing, and goods so inflated compared to outside prices, that the low wages they receive from participating in vocational training are often necessary to exercise any form of (consumptive) agency while inside. As such, the state, via penitentiary-based agribusiness assignments, both sanctions and requires prisoners to engage in the routine sexual assault of farmed animals as a requirement of agribusiness training, and hence, their rehabilitation. However, this assault, a component of “business as usual” is expressed in the identity of “the farmer” rather than the “zoophile.” It is worth noting that the figure of the farmer is distinctly bound up in the colonial transformation of the new world as they were aggressively recruited by colonial governments for the purposes of settlement. I suggest then that the farmer is representative of “the human” of Western ontology, as this figure—the able-bodied white male taming the rugged frontier and instituting private property relationships to land and life—embodies the capitalistic domination of natural resources upon which settler colonialism continues to rely. The zoophile, on the other hand, is the individual whose sexual orientation, and whom derives pleasure, from the sexual assault of nonhuman animals, which they frame at times as loving and consensual.

Second, reports about the former prison farms revealed these to be sites of what we might call interpersonal interspecies sexual assault, with prisoners and guards reporting that farmed animals were at times raped by prisoners—and that this was separate from the systematic reproductive sexual assault required for animal agriculture (Evolve Our Prison Farms, n.d.). Prisoners caught by guards for engaging in these acts were sometimes sentenced to solitary confinement, and others were reprimanded but not reassigned. Within the context of the prison farm, this sex crime is not framed by the individual or medical experts as the expression of one’s sexual orientation, but rather, I would suggest, as further indicative of their criminality and required incapacitation.

Conclusion

Taylor’s book allows for multiple lines of thought and analysis to occur at the nexus of carcerality, ontology, and identity. Inasmuch as the prison is a place where race and animality converge and are remade, it is worth considering not just how animality is used to mark and oppress humans, but also how the carceral is fundamentally in relation to non-human others. This is especially pertinent when resisting genocidal settler colonial logics, which, as Heather Davis and Zoe Todd have argued, have also included the “genocide of all manner of kin: animals and plants alike” (Davis and Todd, 2017, p. 771). As such, colonial caging is a multispecies practice used to shore up settler rule. We can say that the prison continues to be deployed in Canada to produce colonial state sovereignty. It is both a symbolic and material display of the power of the state’s repression of Indigenous sovereignty and reproduces Indigenous individuals as subject to settler law. In so doing, it seeks to manage the threat that Indigenous existence poses to colonial rule. The site of the penitentiary farm is predicated on reproductive interspecies sexual assault, and is also a site of interpersonal interspecies sexual assault. Yet individuals engaging in these acts are not pathologized as zoophiles or sexual deviants, as Taylor shows happens to others engaging in abnormal sexualities. Rather, the reproductive interspecies sexual assault forms a component of the celebrated farmer identity. This form of food production also (re)produces colonial ontologies of animality, property, and food that authorize caging in its various forms. It is through the ongoing and “naturalized” captivity of Black, Indigenous, and specied subjects, that the ontology of the Western human is continually remade.

 

Works Cited

Anderson, V. 2006. Creatures of Empire: How Domestic Animals Transformed Early America. New York: Oxford University Press.

Correctional Service of Canada. 2016a. Report on the Town Hall Meeting on the Feasibility of Re-establishing Penitentiary Farms at the Joyceville and Collins Bay Institutions.

———. 2016b. Online Consultation on Institutional Agribusiness Report.

Coulthard, G. S. 2014. “From Wards of the State to Subjects of Recognition? Marx, Indigenous Peoples, and the Politics of Dispossession in Denendeh.” In A. Simpson and A. Smith, Theorizing Native Studies, 56–98. Durham: Duke University Press. https://doi.org/10.1215/9780822376613-004.

Davis, H., and Z. Todd. 2017. On the Importance of a Date; or, Decolonizing the Anthropocene. ACME Int. J. Crit. Geogr. 16: 761–*80.

Derrida, J. 2008. The Animal That Therefore I Am. 3rd ed. New York: Fordham University Press.

———. 2011. The Beast and the Sovereign. Vol. 1. Chicago: University of Chicago Press.

Evolve Our Prison Farms. N.d. “Reports of Animal Abuse on Kingston’s Prison Farms.” https://evolveourprisonfarms.ca/animal-abuse-on-prison-farms/.

Fitzgerald, A. J., et a. 2009l. “Slaughterhouses and Increased Crime Rates: An Empirical Analysis of the Spillover from ‘The Jungle’ into the Surrounding Community.” Organ. Environ. 22: 158–84. https://doi.org/10.1177/1086026609338164.

Foucault, M. 1977. Discipline and Punish: The Birth of the Prison. New York: Vintage.

Francis, D. 1997. National Dreams: Myth, Memory, and Canadian History. 1st ed. Vancouver: Arsenal Pulp.

Gillespie, K. 2014. “Sexualized Violence and the Gendered Commodification of the Animal Body in Pacific Northwest US Dairy Production.” Gend. Place Cult. 21: 1321–37. https://doi.org/10.1080/0966369X.2013.832665.

Goodman, P., and M. Dawe. 2016. “Prisoners, Cows and Abattoirs: The Closing of Canada’s Prison Farms as a Political Penal Drama.” Br. J. Criminol. 56: 793–812. https://doi.org/10.1093/bjc/azv078.

Guenther, L. 2013. Solitary Confinement. Minneapolis: University of Minnesota Press.

Hannah-Moffat, K., and K. Struthers Montford. 2019. “Unpacking Sentencing Algorithms: Risk, Racial Accountability and Data Harms.” In Predictive Sentencing: Normative and Empirical Perspectives, edited by J. W. de Keijser et al., 175–96. Oxford: Hart. https://doi.org/10.5040/9781509921447.

Kim, C. J. 2015. Dangerous Crossings: Race, Species, and Nature in a Multicultural Age. New York: Cambridge University Press.

———. 2017. “Murder and Mattering in Harambe’s House.” Polit. Anim. 3: 1–15.

Ko, A. 2019. Racism as Zoological Witchcraft: A Guide to Getting Out. New York: Lantern.

Morin, K. 2018. Carceral Space, Prisoners and Animals. 1st ed. New York: Routledge.

Nichols, R. 2014. “The Colonialism of Incarceration.” Radic. Philos. Rev. 17: 435–55.

Office of the Correctional Investigator Canada. 2020. Indigenous People in Federal Custody Surpasses 30% – Correctional Investigator Issues Statement and Challenge – Office of the Correctional Investigator [WWW Document]. https://www.oci-bec.gc.ca/cnt/comm/press/press20200121-eng.aspx.

Oksala, J. 2010. “Foucault’s Politicization of Ontology.” Cont. Philos. Rev. 43: 445–66. https://doi.org/10.1007/s11007-010-9153-6.

Rudin, J. 2016. Aboriginal Peoples and the Criminal Justice System.

Stănescu, V. 2013. “Why ‘Loving’ Animals Is Not Enough: A Response to Kathy Rudy, Locavorism, and the Marketing of ‘Humane’ Meat.” J. Am. Cult. 36: 100–110.

Stark, H. K. 2016. “Criminal Empire: The Making of the Savage in a Lawless Land.” Theory Event 19.

Struthers Montford, K. 2016. “Dehumanized Denizens, Displayed Animals: Prison Tourism and the Discourse of the Zoo.” philoSOPHIA 6: 73–91.

———. 2017. “Agricultural Power: Politicized Ontologies of Food, Life, and Law in Settler Colonial Spaces.” PhD diss., University of Alberta, Edmonton.

———. 2019. “Land, Agriculture, and the Carceral.” Radic. Philos. Rev. 22: 113–41. https://doi.org/10.5840/radphilrev20192494.

Struthers Montford, K., and D. Moore. 2018. “The Prison as Reserve: Governmentality, Phenomenology, and Indigenizing the Prison (Studies).” New Crim. Law Rev. Int. Interdiscip. J. 21: 640–63. https://doi.org/10.1525/nclr.2018.21.4.640.

Taylor, C. 2010. “Foucault and the Ethics of Eating.” Foucault Stud. 9: 71–88.

Williams, R. A., Jr. 1992. The American Indian in Western Legal Thought: The Discourses of Conquest. Oxford: Oxford University Press.


  1. All treason legislation shares as its basis the English treason legislation of 1351, with treason originally referring to “an attack on the person or life of the monarch” (CDN Encyclopedia), yet as the state assumed higher importance than the figure of the monarch, treason was refigured to “indicate any act directed at the overthrow of the government or against the security of the state” (2010, p. 75).

  • Chloë Taylor

    Reply

    Response to Kelly Struthers Montford

    My inclusion of sex crimes against nonhuman animals in Foucault, Feminism, and Sex Crimes is likely one of the more surprising aspects of the book. Although sexual abuse of nonhuman animals is at least as pervasive as the sexual abuse of women and children, it is far less discussed. For this reason, I am grateful to Kelly’s commentary for focusing on this part of the book, but also for taking the conversation in a novel direction of her own, thus expanding the conversation considerably beyond what I accomplished in the book. In particular Kelly attends innovatively and compellingly to the role of settler colonialism in objectifying farmed animals such that they can be ontologized as sexually violable, property and food in the first place, and considers the case of the prisons within prisons that are penitentiary farms. As Kelly argues, just as the animalization of Blacks, Indigenous people, and other Others has enabled their incarceration, the naturalization of animal captivity has been part of the ontologization of animals within white supremacist, settler colonial, and carceral imaginaries. Kelly’s discussion of the history of incarcerating Indigenous peoples in North America, which far predates the closure of residential schools, is an important correction to the literature I cite in the book, which often sees one institution replacing the other as a means of settler colonial control.

    In my last response I cited legal scholar Gabriel Arkles’ argument that prisons cannot operate without systematic sexual assault. Even if it were possible for prisons to eradicate forms of sexual assault that are against the rules, such as prisoners raping other prisoners and guards illegally raping prisoners, Arkles argues that the prison could never function without the entirely legal and accepted sexual violence that are strip searches. Similarly, animal studies scholars have demonstrated that, even if farmers could fire all the employees who illegally rape animals, animal agriculture could not operate without the systematic sexual assault against farmed animals that is entailed in controlling their reproductive lives for human profit.1 This is so even though farmers do not normally recognize what they do as sexual assault any more than correctional officers do, and may sexually violate farmed animals with neither sexual desire nor pleasure. In both cases, however, captive bodies are restrained within hierarchical relations of domination, and the incarcerated subject is forced to submit to acts such as the digital penetration of the genitals and anus, forced mating and artificial insemination, and, in the case of male farmed animals, forced masturbation. These are acts that, in virtually any other context, would easily be recognized as sexual assault, and should be so recognized in the context of prisons and farms and prison farms as well.

    Kelly draws attention to the irony of the fact that despite systematic sexual assault against nonhuman animals being central to the profession and thus the identity of farmers, farmers are neither stigmatized nor pathologized as rapists and zoophiles. Kelly’s point is comparable to one made by feminist critical animal studies scholar Fiona Probyn-Rapsey, who discusses the pathologization of “crazy cat ladies” and animal hoarders, and contrasts this with the normalization and acceptance of the far more extensive animal hoarding that is perpetuated by farmers.2 The farmer—although he keeps far more animals captive than the animal hoarder, and despite the fact that he does so in even more cruelly inadequate amounts of enclosed space, similarly inflicting injury and illness due to unhygienic living conditions, over-crowding and stress—is not subjected to the same intrusive gaze, medicalization, shaming and criminal legal punishment to which other kinds of animal hoarders are subjected. Nor, as Kelly observes, is he subjected to the same combination of psychiatrization and law that other people who sexually assault animals are subjected.

    In sum, the farm is a prison for nonhuman animals, and like prisons for humans, it is a settler colonial institution that cannot function without rape, and that normalizes and invisibilizes sexual violence. As Kelly’s commentary prods me to make explicit, my prison abolitionism must also entail the abolition of animal agriculture. As in the case of the prison, the argument from sexual assault is but one of many reasons for the abolition of animal agriculture which, like the prison, is a harmful and oppressive institution. Needless to say, other and more widely discussed reasons for abolishing animal agriculture include the well-being of farmed animals, and the mitigation of climate catastrophe.


    1. Vasile Stanescu, “Why ‘Loving’ Animals Is Not Enough: A Response to Kathy Rudy, Locavorism, and the Marketing of ‘Humane’ Meat,” Journal of American Culture 36.2 (June 2013) 100–110.

    2. Fiona Probyn-Rapsey, “The ‘Crazy Cat Lady,’” in Animaladies: Gender, Animals, and Madness, ed. Lori Gruen and Fiona Probyn-Rapsey (New York: Bloomsbury, 2019), 175–86.

Response

Carceral Appetites

Thinking about Resistance and Food Refusal in Prison Settings through Chloe Taylor’s Foucault, Feminism & Sex Crimes

In the opening pages of Foucault, Feminism and Sex Crimes: An Anti-Carceral Analysis, Chloe Taylor poses an incisive question, one which shapes the foundation of her exploration of the intersection between criminological and sexological discourses. She asks, “What are the true functions of the prison such that it is in fact not a failure but a success?” (3). None of the disciplinary practices related to the prison system achieve the proclaimed goals of rehabilitation (2), so what is really at stake, such that the prison maintains its appeal?

Before reflecting on this crucial question, I will take a moment to position myself. I am not responding to Taylor’s monograph as someone with lived experience in the prison system. I also don’t want to claim myself as having deeply thought about carceral politics or prison abolition. That said, I do come to this symposium with a perspective that I hope will be meaningful. I’m a psychiatrist. I am also a feminist philosopher, but I raise my professional positionality as a psychiatrist as something important to consider, because I come to thinking about Taylor’s work from a certain kind of experiential knowledge. I can’t unknow what it is like to be faced with the difficulties of making a risk assessment and deciding to confine someone in a health care setting against their will; I carry with me the experience of having completed what are called capacity assessments—making the determination whether a person ought to be able to choose to take a medication or not; although I do not work in the forensic psychiatry system, I do at times attend quasi-judicial tribunals called consent and capacity board hearings, where I give testimony related to why I believe an individual should remain in hospital against their will. To a certain degree, I am imbricated and implicated in the kinds of power relations that Taylor is analyzing, even if it is not within the strict carceral settings being considered within the monograph. These power relations are fundamental to understanding the complexity of Taylor’s argument.

This is because, as Taylor goes on to discuss, for Foucault, the prison’s function is in fact to transform politicized offenders into psychiatrized delinquents—social problems rather than political dissidents. Moreover, contemporary anti-carceral scholars emphasize prison as a critical disability issue, insofar as prisons now fulfill the role of the asylum in the wake of “deinstitutionalization” (4). There is both a criminalization of mental illness and the materialization of mental pathology through practices of the carceral system. Yet what we also receive from Taylor’s analysis are the ways in which discipline and resistance are always interconnected. These insights relating to the interweaving of discipline and resistance are particularly important to explore in relation to the issue of psychiatrization.

In order to consider the relationship between discipline and resistance in Taylor’s discussions of how the prison system medicalizes justice, I will turn to a very concrete example—food refusals in prison settings. Specifically, the role of psychiatry in hailing those who engage in hunger strikes or food refusal into relations of anatomo-politics, governing and materializing particular kinds of bodies while perpetuating testimonial forms of injustice. Making this point in relation to Taylor’s book will, I hope, show some of the reach of the arguments she is making.

Food Refusal

There are numerous historical and contemporary instances of prison hunger strikes, though for the purposes of illustrating the ways in which hunger strikes resonate with the insights from Taylor’s anti-carceral analysis, I’ll focus primarily on two: The 1980/1981 Maze Hunger strikes in Northern Ireland and the Pelican Bay Hunger Strikes in 2011 and 2013. Additional thought and attention has previously been paid to the hunger strikes of British suffragettes in the early twentieth century that is certainly relevant to the discussion I’ll offer—that said, this is beyond the scope of the response I’m able to offer here (see Ziarek 2008 for an excellent discussion of the suffragette hunger strikes and the implications for contemporary biopolitics and the dynamics of discipline and resistance).

In October 1980, seven Irish republican prisoners were selected to be part of a hunger strike in HM Prison Maze. Many more had volunteered, but seven were chosen to match the number of individuals who signed the Easter 1916 Proclamation of the Republic. The hunger strike lasted fifty-three days and was the culmination of a longer series of so-called dirty protests held over five years. A second hunger strike occurred in 1981, and one hunger striker, Bobby Sands, was elected as a member of parliament during the strike. The strike was called off when ten prisoners starved to death, including Mr. Sands. Notably, the institutional response to the strikes and to the deaths was to label these as suicides (Beresford 1987; Scanlon et al. 2008).

The Pelican Bay hunger strikes are more recent, taking place first in 2011 and again in 2013, in the Pelican Bay State Prison, a supermax facility in California. The 2011 hunger strikes were in fact coordinated across multiple prisons in the California system. In the 2013 hunger strike, four alleged rival prison gang leaders organized the strike, in protest of being held in long-term indefinite solitary confinement, and in protest of the lack of change to indefinite solitary following the 2011 hunger strikes (see Fresh Air podcast, March 6, 2014; Rodriguez 2013). For context, Pelican Bay Prison has the notoriety of holding 1,500 people in what’s called the “Security Housing Unit” (SHU), where the individuals there live alone in windowless cells 22.5 hours of the day. They spend their ninety minutes out of the cell also alone, in concrete exercise pens. Their only form of communication with other individuals is when food trays are slid into their cells, or when they are able to shout out to other inmates, at least until the guards shut down the noise. SHUs have been described as prisons within prisons and are exceptional spaces that are able to circumvent legal oversight—what Angela Davis refers to as “extra-legal” (Morse 2016). More than five hundred of the people held in the SHU have been there for more than a decade, while a shocking number of individuals have been there for more than two decades; the longest serving inmate has been in solitary for forty years. All of the organizers were in solitary when they launched the strike, communicating to each other across cells and also through networks of toilet drains and pipes.

Scholarly literature on forms of resistance within prison settings is fairly extensive, with hunger strikes being one manifestation (Crewe 2007; Reitman 2014; Scanlon et al. 2008). But the first thing to note about the hunger strike literature is a shift in language that is noticeable within the discussions of this topic when they intersect with psychiatry in particular. We move from the term “hunger strike,” more commonly found in the writing of prisoners and proponents of decarceral policies, to that of “food refusal” (Gulati et al. 2018). Food refusal is a sanitized descriptor, situated within the logic that Taylor identifies, where political dissidents are transformed into psychiatric cases. This is an important logic to consider in contemporary carceral settings—it has been argued that it has only been since the suffragette hunger strikes beginning in 1909 that the hunger strike has been framed as a modern political weapon, through its being linked in this context with discourses of human rights; Marion Wallace Dunlop initiated the strike in protest of being denied the status of a political offender (Ziarek 2008). Since that time, we see the increasingly sanitized language of the strikes themselves.

Indeed, “food refusal” is a term that is frequently utilized in psychiatric literature relating to hunger strikes in prisons. And while the psychiatric view of hunger strikes or food refusal identifies the action as a form of communication by prisoners, even these communicative events are depoliticized to a significant degree through psychiatric discourse. We have bodied forms of resistance—resistance to both the criminalization and sanitization of political protest, or resistance to torturous conditions and extra-legal practices—shifted through disciplinary practices into individual mental pathology, or mere choice. Similarly, other forms of resistance in prisons, for instance those that involve excrement (e.g., throwing or smearing feces; in one instance “jamming” excrement up one’s nose to resist force-feeding) have been questioned in relation to whether these are acts of political protest or mental illness (Rosenberg 2011).

Why is that? What is meant by the term “communication” is wide ranging—one paper discussing ethical issues surrounding hunger strikes / food refusal in relation to psychiatry writes that the act can be considered a denotation of protest, an expression of self-harm, a means to reduce tension, a statement of personal distress, or an indicator of mental pathology (Brockman 1999). And while “food refusal” is identified as often being a political statement, the literature goes on to discuss the issue for psychiatrists as one of needing to assess “problem” behaviour (Brockman 1999). The language of behaviour is also coded in particular ways: as instrumental, reckless, indicative of personality disorder versus that of mental pathology.

Even as hunger strikes collapse distinctions between passivity and activity (Ziarek 2008) and protest is identified as the explanation behind a refusal to eat or drink, we can follow Taylor’s argument to understand how these complexities are diminished as a result of the structured discourse of psychiatry. Discussing an exemplar case of food refusal, Bea Brockman, a British Forensic Psychiatrist writes:

Examination revealed that he was not suffering from a mental disorder and was simply angry at loss of liberty and inability to express his autonomy. He could only exercise control over his situation by refusing to cooperate. His behaviour was instrumental—a means to an end. (Brockman 1999, emphasis added)

The contrast between prisoners’ own descriptions of their hunger strikes and that within the ethical and legal literature of forensic psychiatry is significant.

The greatest single task for the psychiatric professional in the context of food refusal is to carry out a capacity assessment. That is to say, to make a determination of whether the actions of food refusal reflect an underlying disorder. Competence, or capacity, refers to a person’s ability to understand and appreciate the nature of a given decision, its consequences, risks, as well as the alternatives to that decision. If a person were to refuse food out of a false or misguided belief that they were being poisoned, for instance, they would not be deemed capable of making that decision, and the food refusal would be considered the result of a mental disorder. In contrast, the ethical and legal frame for food refusal in psychiatry is that competent prisoners may choose starvation, even if this is a result of a desire to harm oneself out of neglect, self-injury, or suicidal inclination.

Much of the discussion of food refusal and psychiatric assessment centres around the determination of capacity and the right of capable individuals to refuse food. To echo Taylor’s comments in the earliest pages of the book, perhaps we ought to pose different questions. Framing the issue as one of, “Are they capable to refuse?” fails to engage with way in which practices of medicalization are the very structures that neutralize protest, regardless of the outcome of a capacity assessment.

As Taylor discusses, within the carceral setting, the discourses of psychiatry hold a particular privilege and are given a truth value and truth effect that extends beyond what is even scientifically plausible. This is a part of the disciplinary power that enables mass incarceration in deplorable, torturous conditions, while simultaneously dampening down any significant popular resistance (119). Framing hunger strikes as being fundamentally about questions of capacity rather than questions of injustice, torture, or trauma, structures the response to these as either, “treat the delusion with antipsychotics and force feed,” or “a prisoner’s decision, regardless of how foolish it appears, cannot be overruled.” The option of engaging with hunger strikes on their own terms, as a nonviolent form of protest, has been neutralized as a response.

The psychiatric profession puts at the heart of food refusal either mental disturbance such as delusions, personality disorder, or reckless/bad behaviour. This framing is part of a biomedical imaginary that individualizes and depoliticizes social relations. But what we could also choose to see, is the idea of hunger strikes as bodily practices of resistance, in a setting where resistance has limited ways of being operationalized. To this point, it is significant then that hunger strikes typically are coordinated with demands by prisons that basic needs and legal obligations be met.

In Pelican Bay and in other settings, the organization of, and engagement in, hunger strikes was a way for individuals to recognize each other as members of a prison class, and to see that other divisions amongst the prisoners were fuelled by the prison system itself in the interest of control. As a coordinated, nonviolent form of protest, the Pelican Bay hunger strikes were also a way for SHU prisoners to resist their depiction as racialized and violent gang members (Morse 2016). The question of whether an inmate is capable to refuse food individualizes the protest; it moves the protest back into a carceral logic that undermines the forms of resistance that might exist in the prison setting.

In light of my discussion of food refusal in prisons, I’m prompted to ask the following questions: (1) Is there a way to engage in capacity assessment or determination of mental distress and disorder that could shift the discipline-resistance relationship so that protest is heard on its own testimonial terms, and not sanitized? (2) Similarly, is there a way to enact containment and risk assessment that isn’t carceral? And (3) how might we communicate across difference and restructure our imaginaries in relation to justice? I look forward to engaging more with Taylor, the respondents, and readers on these issues.

 

Works Cited

Beresford, D. Ten Men Dead: The Story of the 1981 Irish Hunger Strike. New York: Atlantic Monthly Press, 1987.

Brockman, B. “Food Refusal in Prisoners: A Communication or a Method of Self-Killing? The Role of the Psychiatrist and Resulting Ethical Challenges.” Journal of Medical Ethics 25.6 (1999) 451–56.

Crewe, Ben. “Power, Adaptation, and Resistance in a Late Modern Men’s Prison.” British Journal of Criminology 47.2 (2007) 256–75.

Fresh Air. “How 4 Inmates Launched a Statewide Hunger Strike from Solitary.” 2014. https://www.npr.org/2014/03/06/286794055/how-four-inmates-launched-a-statewide-hunger-strike-from-solitary.

Gulati, G., et al. “Hunger Strikes in Prisons: A Narrative Systematic Review of Ethical Considerations from a Physician’s Perspective.” Irish Journal of Psychological Medicine 35 (2018) 135–42.

Morse, A. “From Guantanamo Bay to Pelican Bay: Hunger Striker and the Biopolitical Geographies of Resistance.” Masters thesis, University of Oregon, 2016.

Reitman, K. “The Pelican Bay Hunger Strike: Resistance within the Structural Constraints of a US Supermax Prison.” South Atlantic Quarterly 113.3 (2014) 579–611.

Rodriguez, S. “Faces and Voices of the California Prison Hunger Strike.” Prisoner Hunger Strike Solidarity (blog), 2013. https://prisonerhungerstrikesolidarity.wordpress.com/voices-from-inside/faces-and-voices-of-the-california-prison-hunger-strike/.

Rosenberg, Carol. “Waste Wars: Captives ‘Weaponize’ Bodily Fluids.” Miami Herald, June 18, 2011. https://www.miamiherald.com/latest-news/article1938250.html.

Scanlon, S., et al. “Starving for Change: The Hunger Strike and Nonviolent Action, 1906–2004.” Research in Social Movements, Conflicts and Change 28 (2008) 275–323.

Ziarek, E. P. “Bare Life on Strike: Notes on the Biopolitics of Race and Gender.” South Atlantic Quarterly 107.1 (2008) 89–105.

  • Chloë Taylor

    Reply

    Response to Suze Berkhout

    I am grateful to Suze, as a psychiatrist, for engaging with my work. I recognize that just as there are extremely difficult cases for prison abolition—sometimes referred to as “the dangerous few,” which I discuss in my chapter on serial sex killers—so in the case of psychiatric incarceration, there are very difficult cases that make an abolitionist approach seem idealistic or naïve. I can understand the decision to keep a person hospitalized against their will when they are determined to hurt or kill themselves or someone else, particularly when psychiatrists and other psy- professionals are held legally and professionally liable if they do not institutionalize someone who ends up doing harm. From psychotherapists whom I have known and with whom I have discussed such situations, I know that even a psy- professional who is critical of institutionalization, and who knows that in a particular situation institutionalization will do no good and may even cause further harm, nonetheless has little choice but to commit someone against their will in certain circumstances, if they want to keep their license. I appreciate that these and other difficult cases are situations that Suze deals with on a regular basis.

    Very often prison abolition seems palatable to people, however, only because they imagine that the same people who are currently incarcerated in prisons would simply be incarcerated in other, supposedly gentler institutions instead, and these are usually psychiatric and other psy- institutions. Some of my students, for example, have said that they can support prison abolition since they imagine most people in prisons would be better served by placement in psychiatric hospitals and drug rehabilitation centres. They thus envision not so much the abolition of prisons as the movement of prisoners into different types of prisons from which, presumably, they would similarly be held against their wills until they were deemed by authorities to be normal, or normalized—which, to be fair, sometimes means that they no longer pose a danger to themselves or others.

    The isomorphic nature of prisons and other disciplinary institutions such as the hospital, the residential school, and the residential home is emphasized by Foucault. Historically the same carceral institutions have changed names to be poorhouses, homes for “fallen women,” psychiatric hospitals, residential schools, residential homes for disabled persons, and prisons. That the same architectural spaces can take on these different names suggests the similar function of these various institutions. Moreover, following the closure of most psychiatric hospitals between 1955 and 1994 and the widespread deinstitutionalization of the mentally ill, many people formerly housed in psychiatric institutions were left homeless and without medical resources and were quickly incarcerated—sometimes in the mushrooming psychiatric wings of prisons. It is important that prison abolition does not simply reverse this movement, closing prisons only to refill psychiatric institutions. This is part of why prison abolition, as Hasana notes, is at least as importantly a constructive movement as a destructive one: unlike what happened with the closure of psychiatric hospitals—and with the supposed abolition of slavery to which prison abolition is also compared—the closure of prisons would need to be done with extensive support networks and programs made available to former prisoners, including adequate low-income housing, educational and job opportunities, health care, child care, and so forth.

    As a psychiatrist Suze acknowledges the ways that psychiatrization often functions to neutralize political dissent, and she also acknowledges the complicity and instrumentalization of psychiatry in carceral power—both in institutions of psychiatric confinement and in the criminal legal system and its prisons. The case of food refusal that Suze discusses is one example, where a form of political protest is viewed through the lens of pathology. While I did not discuss food, or food refusal, in Foucault, Feminism, and Sex Crimes, in other writings I have addressed these topics. The form of political food refusal that I have examined, however, is not hunger strikes but the refusal to eat animal foods, and in particular I have examined the psychiatrization and institutionalization of people who refused to eat animal foods in the nineteenth century to today.1 I have traced the trajectory of pathologizing vegans from the psychiatric diagnosis of nineteenth-century diagnoses of “anti-vivisection disorder” and “monomania,” to the twentieth-century diagnosis of “oral cannibalistic impulses,” to today’s “orthorexia nervosa” and avoidant/restrictive food intake disorder. As Suze discusses, prison hunger strikes are deemed “food refusal,” and those who die during hunger strikes are deemed “suicides,” thus medicalizing what is in fact a form of political resistance. This also occurs with the pathologization of refusing to eat meat, which is not a medical issue but, like prison hunger strikes, a political and ethical decision that psychiatry and other psy- professions have tried to neutralize through pathologization.

    Suze ends her commentary by questioning whether psychiatry (and perhaps the psy- sciences more generally) can continue to do “capacity assessments” and “risk assessments,” and “enact containment,” in ways that do not silence political dissent and that are less disciplinary. This points to larger questions about whether the psy- disciplines can ever function in a way that does not depoliticize and oppress. This is a question that I explored long ago in an article on Foucault and Frantz Fanon, who, like Suze, was both a philosopher and a psychiatrist.2 In that article, I cited diverse opinions on the question from Foucault scholars. As I wrote,

    [EXT]According to John E. Toews . . . Foucault fails to realize that the problems with the psychological disciplines to which he points had been auto-critiqued and transformed within the writing and practice of psychoanalysis itself, and, we might suppose, within the other psychological disciplines as well. [Todd] May is more skeptical, arguing that while there is nothing a priori about Foucault’s arguments, and we might conceive of a future psychological practice so transformed that it would not have the “onerous political effects” of the psychological disciplines today, such a practice is yet to be seen. As May writes, this “is because the general focus upon the self which psychology fosters has become deeply entwined with the projects of normalization and discipline.”3[/EXT]

    At the time—ten years ago, and entirely in an armchair philosopher fashion—I sided with May on the question, but I did so exclusively by discussing the academic writings of dead or elderly philosopher-psy-experts such as Fanon himself and Julia Kristeva. Looking back, I realize that I did so knowing virtually nothing about contemporary psychiatry, psychology, or psychotherapy, either academically or experientially, beyond what I had read in the works of Freud and French philosophers. Since then, I have acquired a little bit more education about and experience with the psy- disciplines. Most of this more recent education and experience has confirmed and reinforced what I previously thought, but some of it—such as a period spent seeing a feminist psychologist, reading authors such as feminist sex therapist Leonore Tiefer (about whom I have mixed feelings),4 and listening to some of Suze’s presentations at CSWIP conferences—make me more skeptical, or perhaps I should say more hopeful.


    1. Chloë Taylor, “Abnormal Appetites: Foucault, Atwood, and the Normalization of a Meat-Based Diet,” Journal for Critical Animal Studies 10.4 (December 2012) 130–48, and Chloë Taylor and Kelly Struthers Montford, “Veganism as Universal Design,” in Disability and Animality, ed. Stephanie Jenkins et al. (Routledge, 2020), 129–58.

    2. Chloë Taylor, “Fanon, Foucault, and the Politics of Psychiatry,” in Fanon and the Decolonization of Philosophy, ed. Elizabeth A. Hoppe and Tracey Nicholls (Lanham, MD: Lexington, 2010), 55–74.

    3. Taylor, “Fanon, Foucault, and the Politics of Psychiatry,” 55.

    4. Chloë Taylor, “Female Sexual Dysfunction, Feminist Sexology, and the Psychiatry of the Normal,” Feminist Studies 41 (Number 2015), 259–92.

Response

Feeling Injustice

The effects of violence are something to do with why violence can be judged as “bad.” Now, this is not to say that what makes violence bad is the other’s suffering. To make such a claim is dangerous: it makes the judgment of right and wrong dependent upon the existence of emotions. The reduction of judgments about what is bad or wrong to experiences of hurt, pain or suffering would be deeply problematic. For the claim would allow violence to be sustained in the event that the other claimed not to suffer, or that I claimed the other did not suffer. We must remember that some forms of violence remain concealed as violence, as effects of social norms that are hidden from view. Given this, violence itself could be justified on the grounds of the absence of consciously-felt suffering. The reduction of injustice to emotions also “justifies” claims of access to the interiority of the feelings of others.

—Sara Ahmed1

 

Introduction

Chloe Taylor’s book Foucault, Feminism, and Sexual Crimes: An Anti-carceral Analysis challenges us to reconsider the contributions of Foucauldian and feminist scholarship on this subject. And heeding Taylor’s (2019) argument that sex crimes “are a contingent phenomena structured by and arising from social contexts that can be changed” (20), we would like to push Taylor’s thinking about how emotions, feelings, and affects structure and shape the ways in which we understand, construct, and respond to sex crimes, offenders, and victims. To facilitate this discussion, we take up the criminalization of HIV nondisclosure as our object lesson, a topic that Taylor does not address in her book, but which we maintain exists as a new(er) manifestation of biopolitical and disciplinary power mobilized by the neoliberal state under the guise of protecting the public (primarily cisgendered heterosexual women) from the risks posed by this particular category of sexual offender.

In Canada, if you are living with HIV you are legally required to disclose your HIV positive status prior to engaging in sexual activity unless you wear a condom and have a low viral load (classified as less than 1,500 copies of HIV per millilitre of blood). If you fail to meet either of these conditions, the consent obtained prior to sex is considered to be vitiated and the person living with HIV can be criminally charged. Aggravated sexual assault is the most common charge in these cases and carries a maximum punishment of life imprisonment. When released, these individuals are also mandated to be listed on a national sex offender registry. It is important to note that in Canada, 61 percent of nondisclosure cases involve no HIV transmission2 and therefore no physical harm.3 Taylor’s book can help us to better understand how the criminalization of HIV nondisclosure operates as a new configuration in the state’s efforts to criminalize sex deemed immoral and “wrong” and the associated construction of victims and offenders in these cases. By bridging Taylor’s theoretical vantage point with an “emotions lens,” we introduce our notion of emotional harm. We believe this adds a layer of explanatory power to Taylor’s thinking about sexual crimes and the politics that underscore the carceral feminist push to incarcerate, and offers a new theoretical oeuvre for interpreting the socio-legal climate that has given rise to these specific criminalization efforts.

The Emotional Underpinnings of Punishment

In chapter 4, Taylor draws attention to the discursive shifts in the feminist battle to transform norms of gender and sexuality in order to combat violence against women in the name of public safety. Contending that “many girls and women now have greater expectations of controlling their bodies and experiences than they have had historically” (Taylor, 2019, 86), Taylor maintains that feminist calls for greater recognition of the harms caused by the institutions of patriarchy and misogyny were taken up by politicians and converted into a conservative political agenda. We have previously described this agenda as an affective economy of punishment that is saturated with and structured by a variety of emotions including fear, disgust, and anger.4 The policy changes that carceral feminists have secured evidence this as they shore up carceral logics and punitive outcomes to try to garner a sense of closure and justice for victims. Indeed, while BIPOC women’s anger at carceral expansion, which disproportionately affects communities of colour, is often dismissed as hysterical or extreme,5 carceral feminist anger is taken up precisely because it is in support of a punishment agenda that plays on our fears and anxieties.

Criminalizing HIV nondisclosure is but one example of the ways in which emotions such as fear, disgust, and anger have fueled a punishment agenda. Media coverage of these cases is highly sensationalized and the emotions that these representations muster in the reader ultimately come to shape the public’s view of people living with HIV (PLWHA) as always-already potentially dangerous sexual predators6—a problematic moral framing that is rooted in the homophobic view that HIV/AIDS emerged in response to sexual deviancy amongst the LGBTQ+ community. PLWHA experience the constant gaze of the state via the institutions of law, medicine, and public health. Their blood, bodies, and the virus are monitored, surveilled, and traced—oftentimes without their consent7—in order to protect the HIV negative body politic. As Taylor (2019) notes, “the law today seeks to know the interior lives and intimate details of its subjects in order not only to judge them but also to manage them” (64).

HIV management in the context of criminalizing nondisclosure now involves subjecting PLWHA to different forms of disciplinary power. These include identifying and segregating people that may spread HIV to “good moral citizens,” giving “no sex” public health orders, and forcing those convicted in an HIV nondisclosure case to register as sex offenders. Following Taylor (2019), “what this means is that the law no longer punishes individuals merely for what they have done, but also for what psychiatric experts state that they are: a danger to society” (68). If PLWHA are now punished both for the crime they are said to have committed (e.g., sexual assault resulting from nondisclosure), but also for the degree of future risk they are interpreted as posing to the public, we may classify the criminalization of HIV nondisclosure as a form of biopolitical and disciplinary power that targets a new class of socially constructed sexual predator, for to be HIV positive in this configuration means to be an ever-present risk to the body politic. In this way, we can see the expansion of categories of harm for which conservatives, victim’s rights groups, and carceral feminists may support a punishment agenda. Complainants in nondisclosure cases are constructed very differently than other sexual assault complainants—not least because these cases involve consensual sex that is converted into sexual assault by way of legal reasoning. As such, the law encourages women to see themselves as victims and as lacking agency in the sexual encounter, given that consent no longer involves consenting to all of the risks that sex poses. In this way, law marks HIV as distinct from other STIs (e.g., hepatitis C, chlamydia, and gonorrhea to name a few), effectively remaking sexual health to be the primary responsibility of PLWHA rather than a shared responsibility between two partners.

Notably, the conviction rate for HIV nondisclosure cases is 70 percent8 while only 12 percent, or roughly 1 in 10, sexual assaults reported by police result in a conviction.9 Moreover, 62 percent of nondisclosure cases with male defendants and 100 percent of nondisclosure cases with female defendants involve cisgendered, heterosexual couplings. 10 This signals that cisgendered heterosexual men and women feel more comfortable going to, or more compelled to go to the police when learning of a partner’s nondisclosure, despite the well-documented history of women being treated poorly by criminal justice actors when reporting sexual assault. This sense of trust in the state is not so different a feeling from that expressed by carceral feminists who advocate for harsh punishments for sexual offenders. These trends also suggest that people in the LGBTQ+ community might experience more distrust of the police and may be more reluctant to go to the police should they be exposed to HIV via nondisclosure. Given the degree to which LGBTQ+ people have been psychiatrized and criminalized as “sexual deviants” and the community’s keen awareness and experience of the history of the HIV/AIDS epidemic, perhaps this is unsurprising. Indeed, Taylor (2019) writes that “statutory rape laws have been used far more often to punish homosexual relationships than heterosexual relationships” (48).

Criminalizing Emotional Harm

The more we view acts of sexual violence as individual events, the more detached they become from the larger structural problems of racism, patriarchy, misogyny, sexism, homophobia, transphobia, and/or classism that inevitably shape them. When a woman experiences sexual assault, she is henceforth named “a rape victim or a rape survivor, with all the consequences that this entails. This woman will be constituted as such through medical discourses as well as by her own historically contingent [and we would argue, emotional] understanding of events” (Taylor, 2019, 93). As Taylor shows, not all victims of sexual violence understand themselves in this way and a victim-identity can undermine other aspects of one’s sense of self. Not only does this identification do little to aid one to process the feelings and emotions that accompany sexual assault, but seeking carceral responses to actions that elicited emotional harm belies Ahmed’s point that it is dangerous to make judgments about right and wrong dependent upon the existence of emotions since there are experiences of violence that go unnoticed and unfelt, which does not mean that they did not occur.11 Galtung described this as structural violence, or, violence that is built into the structure of society, which manifests in unequal power relations and life chances.12 Despite this, law focuses on interpersonal violence precisely because it is felt and easier to identify.

In trying to conceptualize harm within the context of criminalizing HIV nondisclosure, we take up Weait’s argument that “what we think of as harmful in criminal law is properly understood as a product of moral agency: it is the manner of its production that renders it so.”13 This is why the law focuses on the act of disclosure—nondisclosure is interpreted as a moral failure that has criminal-legal repercussions. This moral failure is what makes us angry, scared, and disgusted and is thus why the state controls, manages, traces, and criminalizes the individuals who are seen as embodied threats. At present, law perpetuates the suffering of PLWHA by creating additional emotional and physical harms that flow from stigmatization, criminalization, and incarceration. Following Taylor’s argument that it is anti-feminist to send people to prison for sexual crimes when there are elevated risks for sexual victimization in that environment, we must also problematize the fact that our state response to the emotional harm created by HIV nondisclosure is to offer up conditions that are ripe for HIV transmission, given the lack of access to harm reduction technologies in prison.

To that point, we want to conclude by posing a series of questions. First, given that the majority of HIV nondisclosure cases involve no HIV transmission, are we not engaging in carceral expansion for “crimes” that are by and large attributable to having caused emotional harm? If so, then how should we assess this configuration in terms of resource allocation? Second, what are the dangers of inviting an ever-expanding network of experts to come to know/assess this population given the problematic interpretations of and assumptions about an HIV criminal subjectivity? Third, does criminalizing nondisclosure work as an effective general or specific deterrent? Does it help victims attain a sense of justice? If not, then does our current state approach not perpetuate physical and emotional harm rather than stopping it? And finally, what does this all mean for the safety and rights of HIV positive people? For if we accept Berlant’s position that “the feelings we have are unreliable measures of justice and fairness,”14 then we must question the power effects of the discourses and practices that currently surround the criminalization of HIV nondisclosure, including the very premise of criminalizing emotional harm.

 

Works Cited

Ahmed, Sara. The Cultural Politics of Emotion. Edinburgh, Edinburgh University Press, 2004.

Berlant, Lauren. “The Subject of True Feeling: Pain, Privacy, and Politics.” In Transformations: Thinking Through Feminism, 34–47. London: Routledge, 2000.

Galtung, Johan. “Violence, Peace, and Peace Research.” Journal of Peace Research 6.3 (1969) 167–91.

Hastings, Colin, et al. “HIV Criminalization in Canada: Key Trends and Patterns.” Toronto: Canadian HIV/AIDS Legal Network, 2017.

Kilty, Jennifer M., and Katarina Bogosavljevic. “Remembering Carol Smart: Tensions between Feminism, Victims’ Rights, and Abolitionism.” In Building Abolition: Decarceration and Social Justice. Routledge, forthcoming.

Kilty, Jennifer M., and Katarina Bogosavljevic. “Emotional Storytelling: Sensational Media and the Creation of the HIV Sexual Predator.” Crime, Media, Culture 15.2 (2019) 279–99.

McClelland, Alexander, et al. “The Rise of Molecular HIV Surveillance: Implications on Consent and Criminalization.” Critical Public Health 30.4 (2019) 487–93.

Rotenberg, Cristine. “From Arrest to Conviction: Court Outcomes of Police-Reported Sexual Assaults in Canada, 2009 to 2014.” 57 pp. Catalogue no. 85-002-X, Canadian Centre for Justice Statistics, 2017. https://www150.statcan.gc.ca/n1/pub/85-002-x/2017001/article/54870-eng.htm.

Richie, Beth E. Arrested Injustice: Black Women, Violence and America’s Prison Nation. New York: New York University Press, 2012.

Sudbury, Julia. “Rethinking Antiviolence Strategies: Lessons from the Black Women’s Movement in Britain.” In Color of Violence: The INCITE! Anthology, 13–24. Durham: Duke University Press, 2016.

Taylor, Chloe. Foucault, Feminism and Sex Crimes: An Anti-Carceral Analysis. New York: Routledge, 2019.

Weait, Mathew. “HIV and the Meaning of Harm.” In Criminalising Contagion Legal and Ethical Challenges of Disease Transmission and the Criminal Law, 18–34. Cambridge: Cambridge University Press, 2016.


  1. Sara Ahmed, The Cultural Politics of Emotion, (Edinburgh: Edinburgh University Press, 2004), 193.

  2. Colin Hastings et al., HIV Criminalization in Canada: Key Trends and Patterns (Toronto: Canadian HIV/AIDS Legal Network, 2017), 7.

  3. See Mathew Weait, “HIV and the Meaning of Harm,” in Criminalising Contagion Legal and Ethical Challenges of Disease Transmission and the Criminal Law (Cambridge: Cambridge University Press, 2016), 31–34. Weait argues that HIV infection cannot be justified as a harm for the purposes of criminal law because it can result in physical harms such as illness and death. It is beyond the scope of this essay to situate our argumentation within this broader discussion about the criminalization of different forms of harm.

  4. Jennifer M. Kilty and Katarina Bogosavljevic, “Remembering Carol Smart: Tensions between Feminism, Victims’ Rights, and Abolitionism,” in Building Abolition: Decarceration and Social Justice (Routledge, forthcoming).

  5. Beth E. Richie, Arrested Injustice: Black Women, Violence and America’s Prison Nation (New York: New York University Press, 2012); Julia Sudbury, “Rethinking Antiviolence Strategies: Lessons from the Black Women’s Movement in Britain,” in Color of Violence: The INCITE! Anthology (New York: Routledge, 2019).

  6. Jennifer M. Kilty and Katarina Bogosavljevic, “Emotional Storytelling: Sensational Media and the Creation of the HIV Sexual Predator,” Crime, Media, Culture 15.2 (2019) 279–99.

  7. Alexander McClelland et al., “The Rise of Molecular HIV Surveillance: Implications on Consent and Criminalization,” Critical Public Health 30.4 (2019) 487–93.

  8. Hastings et al., “HIV Criminalization in Canada,” 6.

  9. Cristine Rotenberg, “From Arrest to Conviction: Court Outcomes of Police-Reported Sexual Assaults in Canada” (Catalogue no. 85-002-X, Canadian Centre for Justice Statistics, 2017), 3. According to this report, out of 93,501 incidents of sexual assault reported by police from 2009 to 2014 only 40,490 (43%) had charges laid, of these, 19,806 (49%) proceeded to court, of which 8, 742 (55%) resulted in a guilty verdict (10).

  10. Hastings et al., “HIV criminalization in Canada,” 5.

  11. Ahmed, Cultural Politics of Emotion, 193.

  12. Johan Galtung, “Violence, Peace, and Peace Research,” Journal of Peace Research 6.3 (1969) 171.

  13. Weait, “Meaning of Harm,” 33.

  14. Lauren Berlant, “The Subject of True Feeling: Pain, Privacy, and Politics,” in Transformations: Thinking through Feminism (London: Routledge, 2000), 45.

  • Chloë Taylor

    Reply

    Response to Katarina Bogosavljevic and Jennifer Kilty

    Thanks to Kat and Jen for reading and engaging so productively with my book, and also for doing so on short notice for this symposium. As I note in my introduction to Foucault, Feminism, and Sex Crimes, when I began writing the book I was only thinking about two kinds of sex crimes: rape and sex with children. As I worked on the book over years, however, I was often asked if I was going to write about serial sex killers, and so I did. I also came to realize that the category of sex offenders that was filling prisons was not rapists or child molesters but people convicted for possession of child pornography, and so I decided to write on pornography as well. Because of an invitation to a critical animal studies conference, I decided to combine my interests in sex crimes and critical animal studies, and so I also wrote on zoophilia, bestiality, and interspecies sexual assault. Finally, I also wrote on sex work, given the criminalization of prostitution as a longstanding feminist concern.

    The category of sex crimes is capacious, however, and historically contingent, with many acts criminalized historically and today other than those I wrote on. For instance, “adultery against Christ” (sex with a nun), sex between a Gentile and a Jew, miscegenation, and homosexuality have each historically been criminalized. Even considering contemporary sex crimes, there are many acts that can result in a person being deemed a “sex offender”—such as urinating in public (“indecent exposure”), even if one is only doing so because homeless—that I did not have the space to analyze in the book. One such example of a criminalized sexual act that I do not discuss in the book is HIV nondisclosure within a sexual relationship. Even more specifically, as Bogosavljevic and Kilty note, I did not discuss the topic of HIV nondisclosure in terms of affect, although emotions are a frequent topic throughout the book.

    Fortunately, Kat and Jen have recently written an excellent article on this topic themselves, titled “Emotional Storytelling: Sensational Media and the Creation of the HIV Sexual Predator.”1 As both Kat and Jen’s commentary makes clear, the criminalization of HIV nondisclosure as a form of sexual assault is highly amenable to a Foucauldian feminist analysis such as I explored in the book: it can readily be described in terms of disciplinary and biopower, the perverse implantation, and the social construction of sexual and criminal identities (“the sex offender”) that always intersect with categories of race, sexuality, and gender, and the preexisting criminalization and hypersexualization of Black and queer people in particular. The ways that Kat and Jen expand on their article and on my book to consider the case of HIV nondisclosure is entirely convincing to me.

    Kat and Jen conclude their commentary with several questions, however, about one of which I am less clear. I would like to focus on this question in the remainder of this response. They write:

    First, given that the majority of HIV nondisclosure cases involve no HIV transmission, are we not engaging in carceral expansion for “crimes” that are by and large attributable to having caused emotional harm? If so, then how should we assess this configuration in terms of resource allocation?

    I am not entirely sure of the argument that is being made with this last sentence, since it is phrased in the form of a question rather than a statement, however it seems to suggest that HIV nondisclosure ought not to be considered a crime (hence the scare quotes around the word) in cases where there was no HIV transmission, and hence no physical harm. In cases where the harm is only emotional—for instance, perhaps a complainant found out that the person they had sex with was HIV-positive, and so underwent a period of fear that they might have transmitted HIV, only to have these fears put to rest by a negative HIV test, or perhaps repeated negative HIV tests; perhaps even after they were assured that no HIV transmission has occurred, they experienced a sense of betrayal that they had not been told, and perhaps their ability to trust sexual partners was thereafter undermined—Kat and Jen’s suggestion seems to be that it is unworthy of state resources to respond to these cases.

    While on the one hand, since I have argued for a penal abolitionist stance on sexual crimes generally, I do not want to see HIV nondisclosure criminalized any more than any other kind of sexual harm, on the other hand, I do not want to see this case dismissed as unimportant on the basis that in a majority (61%) of cases the harm is emotional rather than physical. I would not want to say that resources should not be allocated in cases where the harm is emotional rather than physical, although the allocation of resources that I would have in mind would be put towards transformative justice rather than criminal-legal or punitive responses. For one thing, a large number of sexual assault and child molestation cases involve victims who are not physically harmed. In fact, a surprising number of rape cases involve unconscious victims. Some of these have been given Benzodiazepines such as Rohypnol, or a “date rape pill,” while others are passed out from alcohol or drug use, while others are asleep or, more rarely, in comas when the assault happened. Homeless women are particularly vulnerable to sexual assault while asleep. In some cases, victims have only learned that they were assaulted when images appeared on social media. In cases involving Benzodiazepines, victims might only realize that they have been assaulted after the fact, or may never know for sure if they were assaulted or not. Even in cases where victims are conscious during a sexual assault, they often choose to submit to a rapist rather than exacerbate the risk of physical harm, and so may not be harmed physically. Part of the difficulty of proving rape in courts of law is that sexual assault frequently leaves no traces on the body that differentiate it from consensual sex. In the majority of cases of child molestation, intercourse does not occur, and sexual acts are limited to touching. Most acts of child molestation do not involve physical force, physical trauma, or physical violence. Thus, if we were to decide that HIV nondisclosure is unimportant, or not sexual assault, because the harm is often emotional rather than physical, we could set a precedent for also dismissing a majority of sexual assault and child molestation cases in which there is no physical violence.

    I recognize that responding to situations in which the harm is “only” emotional is fraught for a number of reasons, as Kat and Jen note. As they cite Ahmed, and as I also discuss in my book, one of the problems with gauging the significance of sexual harm in terms of the emotions of survivors is that there are cases of sexual violence where survivors do not identify as victims, and do not feel the emotions that we expect them to feel. There are situations where sexual assault has been so normalized, or in which oppression has been so reified, or where such contradictory emotions are involved, that survivors do not experience sexual assault or childhood molestation as harm, or in which their primary emotions are shame and guilt, or self-blame.

    This is not some small minority of survivors. On the contrary, as I discuss in the book, a majority of women who have had nonconsensual sex that meets the legal definition of rape in the United States do not identify as rape victims. I think that we still want to say that something is wrong with the kind of nonconsensual sex that meets the stringent legal definition of rape, whether or not survivors name it as such and are traumatized in the expected ways. Survivors of childhood sexual molestation in particular often recall experiencing the acts in question with pleasure or desire, or, even more commonly, with confusion or indifference, and reflect back on these experiences with shame and guilt rather than the expected emotions of terror, horror, and trauma. As I argue in the book, we need to denounce adults having sex with children, and nonconsensual sex in general, regardless of the emotions experienced by survivors. The wrongness of rape and child molestation must not hinge on emotional or physical harm.

    Another problem is that emotions are often used—as in victims’ rights testimonies—to ratchet up prison sentences, which, as I discuss throughout my book, is contrary to justice and to the goals of anti-violence feminism in a multitude of ways.

    Finally, as Kat and Jen discuss in their article, another problem with criminalizing sexual acts on the basis of the emotions felt by people involved in these acts is that emotions are frequently caught up with racism, homophobia and transphobia, with people of colour and queer people being most likely to be constructed in these emotional responses as the objects of disgust and fear, and as sex offenders. We can consider the comparable case of “gay panic,” “trans panic,” and “Black panic” defenses, where the law has taken the supposedly fearful (though arguably actually disgusted and hateful) emotions of killers to justify their crimes, even when those emotions were unjustified in the actual context, in which the killers were not vulnerable at all but their victims were, and in which the emotions in question reflect prejudice rather than danger. It is a very dangerous thing for the law to make decisions of guilt and innocence based on the emotions of defendants and complainants, because emotions are very often constituted by discriminatory imaginaries and structural injustice.

    I recognize all of these problems with taking emotional harm seriously as harm, particularly in a criminal-legal context. At the same time, there is also a danger in dismissing harm as “only” emotional. If we went that route, we would have to dismiss most cases of sexual assault and child sexual abuse as unimportant and unworthy of allocating resources towards, since in sexual assault and child molestation most harm is, in fact, emotional. We would be back to only believing that rape was rape in cases of extreme violence, usually involving rapes by strangers. Put otherwise, we would be back to reinforcing rape myths that feminists have worked hard to deconstruct: that rape is always violent, perpetrated by strangers with weapons, and that unless a woman fights back against her assailant until she is unconscious or beaten black and blue, she was not “really” raped.

    To answer the question that Kat and Jen pose: because, in the vision of justice that I offer at the end of the book, the resources I imagine being allocated to address situations of sexual harm are not those of the criminal legal system, but of transformative justice, there is less at risk in taking emotional harm seriously. This is not to say that in a transformative justice context, whatever a survivor feels and wants goes, or that all emotions are validated and acted upon. As transformative justice movements have made clear, for example, if what a survivor wants is excessively retributive or counterproductive, these wishes do not need to be honoured, although they should not be shamed either. In the case of HIV nondisclosure, since I do not envision or aspire to responses such as prosecuting and incarcerating people, but rather, to responses such as education about the true risks of having sex with HIV positive people, and education about how best to disclose, and to receive disclosures, of HIV positivity, I think that there is space to discuss—and also to interrogate—emotions and emotional harm, without the worries that emotions raise within the criminal legal context.


    1. Jennifer Kilty and Katarina Bogosavljevic, “Emotional Storytelling: Sensational Media and the Creation of the HIV Sexual Predator,” Crime, Media, Culture: An International Journal 15.2 (2019) 279–99.

    • Katarina Bogosavljevic

      Reply

      Continuing the Conversation

      We want to thank Chloë for writing such a detailed response to our essay, Feeling Injustice. We wrote this essay as we were grappling with the idea of emotional harm in the context of HIV nondisclosure. What does this concept mean in the criminal-legal context and how do we go about obtaining accountability for people who have suffered emotional harm without relying on the criminal justice system? These are big questions that we continue to struggle with and we thank Chloë for providing us with a few different avenues of reasoning to explore to help us in that work.

      In terms of replying to Chloë’s response to Feeling Injustice, we begin by stating that we absolutely agree with your position that the emotional harm experienced by people whose partners did not disclose their HIV positive status before sex should be recognized and that resources in the form of transformative justice efforts would be a more useful means of responding to this harm than criminal-legal or other punitive responses. Like Chloë’s excellent book, in writing this essay we were advancing the abolitionist argument that criminalization only creates further harms to both parties in addition to the original harm experienced by the nondisclosure. Indeed, we advocate that there needs to be emotional support for both parties – the person living with HIV and the person experiencing the nondisclosure.

      For this to happen though, we must recognize that nondisclosure is not wrong in most cases. As such, we agree with Chloë that “the wrongness of rape and child molestation must not hinge on emotional or physical harm” and suggest that the wrongness of HIV nondisclosure must not hinge on these two factors either. While nondisclosure can be harmful in the sense that people who have experienced it may feel betrayed or afraid while they are waiting for their test results (and other emotions including anger if they contract HIV), the act of nondisclosure, in our view, is not wrong in and of itself. In fact, nondisclosure in some cases is a decision made on the part of people living with HIV to protect themselves. Research shows that disclosing one’s HIV positive status to friends and family can lead to violence and rejection so in that sense, nondisclosure acts as a protective mechanism and is, in the vast majority of cases, not a malicious or intentional attempt to transmit the virus.

      Moreover, we are reminded of something that one of Katarina’s research participants spoke of in terms of disclosure. This person stated that if we expect everyone living with HIV to disclose their status to their sexual partners, then we must also ask ourselves whether we are creating the kind of safe space that is necessary to encourage them to disclose this personal and stigmatizing information. We argue that criminalization and criminal-legal processes completely fail to make this safe space – and actually do the opposite – they create an adversarial environment where people living with HIV are afraid to disclose their status because the possibility of criminalization looms over their head.

      In short, we recognize and agree with Chloë that emotions are often used to justify more punitive criminal justice policies and that emotions in the criminal-legal sphere are tied up with lengthy histories of systemic racism, homophobia, and transphobia. We also contend that any consideration of emotions within this realm needs to be done in a way that allows us to interrogate where the emotions come from, what our intentions are in terms of responding to the harm caused, and how we can support both those who have experienced harm and those who have done the harming. The criminal law, in our opinion, is not the best avenue for dealing with emotions and was certainly not designed to be able to do so. As such, we agree that transformative justice is the best way forward as it allows the parties to recognize the emotional harm in a non-punitive and supportive environment. What forms transformative justice might take remains open for debate.

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