Yes to ending violence against women, but no to the ‘zero tolerance’ route

The problem with the use of 'zero tolerance' in public discourse is that it makes for good populist politics and rhetoric which generally translates into regressive and ill-informed public policy, especially in the area of criminal justice, says Vijay Nagaraj.

In her thoughtful commentary on the aftermath of the brutal rape and murder of a young woman in Delhi, Naila Kabeer underlines, among many other issues, the need for a ‘zero tolerance’ policy with respect to violence against women. I am not suggesting that Prof. Kabeer necessarily used ‘zero tolerance’ in the criminological sense which I do here. However, because the criminal justice system is invoked, at least implicitly, when ‘zero tolerance’ is used while discussing state responses to violence against women, understanding it in the criminological sense is important. Given its recent history and particular connotations we must guard against the ‘commonplace’ and unqualified usage of ‘zero tolerance’. Moreover, its usage in the context of state responses to violence against women (and gender-based violence in general) raises specific additional concerns. 

The idea of ‘zero tolerance’ is generally traced to the late 1970s-80s, in particular the ‘war on drugs’, and it does have a few different but closely inter-related connotations in the context of criminal justice and policing. However, drawing significantly on the approach to policing in New York championed by Commissioner William Bratton in the 1990s (now being widely exported around the world), it is generally agreed that at its core lies a stress on maintaining order, intensive ‘quality of life’ policing, and aggressive enforcement. There are several reasons why the ‘zero tolerance’ approach is especially problematic with respect to crimes against women.

As Benjamin Bowling  reminds us, Bratton’s approach centred on viewing the root cause of crime as the criminal, rejecting social correlates and focussing instead on assertive law enforcement. The stress on individuating responsibility (not to be confused with holding individual perpetrators accountable) in the ‘zero tolerance’ discourse rests on ignoring, or insufficiently accounting for, the wider socio-political context of crime. In other words, there is a distinct danger of not taking serious measures to address the underlying patriarchal structures that perpetuate and legitimise cultures of rape and violence, and focussing increasingly on penalising and isolating individual perpetrators or certain ‘risky’ groups. In other words, it also calls for high levels of ‘social sorting’, profiling, and widespread use of technologies of surveillance and management. 

The focus on aggressive policing and enforcement more often than not implies the reiteration of many heteropatriarchal forms of exerting social control with an increased focus on law and order, security and ‘disciplining’. As the feminist group INCITE! argues, the stress on ‘maintaining order’ in ‘zero tolerance’ regimes often translates into: a) enforcing existing class, racial, gender and sexual hierarchies (to which one may add caste and other such orderings) and, b) exposing ‘disorderly’ groups such as sex- workers, minorities (especially women and youth), the homeless, and LGBT persons (particularly from minority groups), among others, to disproportionate levels of policing, control and surveillance. 

The aftermath of the rape and murder in India has already brought to the fore these concerns in different forms. There is an increased stress on disciplining and tighter social control, mostly of women and girls, in the name of security and ‘prevention’. There have been calls for measures such as ‘chemical castration’, which, apart from its many serious ethical implications, only serves to reinforce the heteropatriarchal gaze. The demand for instituting sex offender databases and registries also poses many significant rights challenges and social concerns. However, police in the state of Haryana are reported to have already “started a process to put names, addresses and crime details of at least 2,500 convicted rapists in the past about a decade on the website”. This is being done despite the absence, as far as one knows, of any legislative framework to regulate such a database, let alone a careful consideration of its effectiveness and impacts on survivors, offenders, their respective families and the community at large.

The governments in the states of Karnataka and Tamil Nadu have decided to invoke the Goondas (a colloquial for dangerous gangsters) Act in rape cases. This Act is highly problematic from a civil liberties point of view as it gives the state far-reaching powers to undermine fundamental rights and due process. For example, the Karnataka Act allows administrative detention for up to one year, among other concerns. It is utterly baffling how a piece of legislation whose full title reads ‘Karnataka Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum Grabbers Act’  is suitable for application in cases of rape or sexual assault. Just a few weeks ago, Tamil Nadu was reported to have extended the use of the Goondas Act in cyber-crime cases! Invoking it in rape cases seems more like an attempt to legitimise an otherwise dangerous piece of criminal legislation than deal responsibly with sexual assault.

Then there are also continuing demands for harsher sentences including life without parole and solitary confinement, not to mention the death penalty. All of these proposals are slippery slopes which will have significant adverse consequences for criminal justice as a whole without significantly denting the patriarchal order of state and society, if anything they may well reinforce it. Notwithstanding the groundswell of recent public protest in India, which is to be welcomed, I have argued elsewhere that the immediate aftermath of heinous acts of criminality, like the brutal gang-rape and murder in Delhi, are in fact not always conducive for significant and purposeful criminal justice reforms. Unfortunately, it is all too common for laws pertaining to sex crimes in particular to be made “by rage and fear in a hurry” with serious wider human rights implications.

The heteropatriarchal state has frequently used the guise of fighting violence against women and girls to strengthen its own coercive apparatus. Stopping sex crimes has proved to be an effective cover to bring in highly regressive criminal justice measures. California’s 1994 ‘three strikes law’ which mandated that a third felony conviction, irrespective of its seriousness, would attract a life sentence is one very good example. Brought in through a ballot initiative in the aftermath of the abduction and brutal murder of a 12-year-old girl by a parolee, the law was sold to voters “as a way of getting killers, rapists and child molesters off the streets for good”. By the time a sustained campaign involving liberals and conservatives successfully overturned some of the more egregious aspects of the law in late 2012, it had led to many serious adverse consequences, including thousands serving life sentences for “any number of low-level felony convictions, like stealing a jack from the back of a tow truck, shoplifting a pair of work gloves from a department store, pilfering small change from a parked car or passing a bad check.”

It is in this overall context that we need to (re)consider the use of ‘zero tolerance’ in public discourse, especially one that invokes, even implicitly,  the criminal justice system. In fact, thanks to politicians, the media and other experts, ‘zero tolerance’ “has assumed a life of its own”. The problem with it is that it makes for good populist politics and rhetoric which generally translates into regressive and ill-informed public policy especially in the area of criminal justice. Even while striving to end violence against women, we must guard against further legitimising discourses such as ‘zero tolerance’. I am with Bowling in calling for “the language and ‘philosophy’ of zero tolerance to be abandoned altogether”, as if there isn’t enough intolerance going around already.