Portal de Periódicos da CAPES

Emergency Frames: Gender Violence and Immigration Status in Spain

2012; Taylor & Francis; Volume: 18; Issue: 2 Linguagem: Inglês

10.1080/13545701.2012.704147

1466-4372

Marta Pérez,

Migration, Health and Trauma

Abstract Abstract Immigration relief for undocumented migrants in the European Union (EU) increasingly focuses on trafficked and battered women. These measures allow flexibility in responding to concerns related to women's rights issues. This study analyzes the humanitarian clause within Spanish immigration law that concerns undocumented battered women. In Spain, undocumented battered women who accuse their male partners of abuse and win legal cases against them become eligible for five-year residence and work permits. Those women who lose must be deported. Several nongovernmental organizations (NGOs) have criticized the arbitrary application of the clause, arguing that protecting battered women should be prioritized over legal status. By putting this argument in dialogue with philosophical and anthropological studies, this study shows how NGO advocacy strategy might obscure the close link between gender violence and the legal status of undocumented migrant women. KEYWORDS: Undocumentedmigration bordersSpaingenderviolence against womenemergency framesKeywords: JEL Codes: F22, J83, K19 ACKNOWLEDGMENTS I thank the Fulbright Commission and the Spanish Institute for Women for funding my research during my stay in New York when this paper was first drafted. For their guidance and inspiration, I am grateful to my professors at The New School: Nehal Bhuta, L. H. M. Ling, and Miriam Ticktin, as well as to Payal Banerjee (Smith College) and Liliana Suárez-Navaz (Universidad Autónoma de Madrid). I am also grateful to the anonymous reviewers and the guest editors of this issue for their comments and suggestions, as well as to the participants at the Feminist Economics Workshop on Gender and International Migration (Bilbao, March 2011). Special thanks to Clément Godbarge (New York University) and Steve Torrente (University of Kansas) for their insightful comments and editing; and to Vinca Bingo (Euromed Management School) and Grace O'Malley (University College Cork) for editing. Notes With phrases such as "fight illegal immigration," among numerous others, I have a distinct discomfort because terms such as "illegal" are social constructs used to criminalize migrants (Mila Paspalanova 2008 Paspalanova, Mila. 2008. "Undocumented vs. Illegal Migrant: Towards Terminological Coherence.". Migraciones Internacionales, 4(3): 79–90. [Google Scholar]). Although this contribution employs "illegal" and other related terms that derive from the language of other scholars, governments, or officials, I neither agree with nor condone the connotations of the terms. I prefer to use "undocumented" when referring to migrants without the administrative documents as required by the receiving state. Created in 1984, the Schengen area forms a territory where, in lieu of a single external border, citizens of signatory EU member states can move freely across borders with common rules for visas, asylum, and border protection. In 1997, the Treaty of Amsterdam incorporated the participation of EU states, including non-signatories of the Schengen agreements, to cooperate in immigration checks (EU n.d.). What Spanish laws refer to as gender violence I call "interpersonal gendered violence," a concept I borrow from Sally Engle Merry (2009 Merry, Engle Sally. 2009. Gender Violence: A Cultural Perspective, Oxford: Blackwell. [Google Scholar]). She uses it to name one kind of violence based on gender identities within a sentimental relationship, including both heterosexual and same-sex ones. However, Spanish laws only include heterosexual couples within this category. This terminology is employed in Ley Orgánica [Organic Law; LO] 1/2004, which is entitled Ley de Medidas de Protección Integral contra la Violencia de Género (Integral Protection Measures Against Gender Violence), also referred to as Ley de Violencia de Género (Law on Gender Violence). The humanitarian clause of Alien Act LO 2/2009 also employs the same language. As my focus is on these legal texts, I, too, use this terminology – that is, gender violence. According to the National Observatory for Violence Against Women (2009 National Observatory for Violence Against Women. 2009. "II Informe Anual del Observatorio Estatal de Violencia Sobre la Mujer". [Second annual report of the National Observatory for Violence Against Women]. http://www.inmujer.es/ss/Satellite?c=Page&cid=1193047406913&language=en_GB&pagename=MinisterioIgua ldad%2FPage%2FMIGU_contenidoFinal (accessed January 2010) [Google Scholar]), the majority of foreign women murdered by their male partners or ex-partners are from Latin America, followed by EU countries and Africa. The same applies for male aggressors. All translations of the law are mine. The law defines "gender violence" as "violence that, as a manifestation of discrimination, inequality, and power relations of men over women, is exercised against women by those who are, or have been, their husbands, or those with whom she has, or has had, similar affective relationships, even without living together" (LO 1/2004: Article 1). These articles led to changes in Spain's National Penal Code, which introduces sanctions specifically targeting men who exercise violence against their women partners or ex-partners (Articles 148, 153, and 171). In Spain Alien Acts are commonly explained and developed by Royal Decrees, which are classified under Reglamentos (Regulations). The provisional permits are among the new features of Alien Act LO 2/2009. They were included after feminist and human rights organizations like AI Spain lobbied for women to not be in legal limbo during the penal process and to be able to support themselves. By nationality, Bolivian women are most affected by gender violence (233 victims in 2008), followed by Moroccan women (133 victims in 2008; National Observatory for Violence Against Women 2009 National Observatory for Violence Against Women. 2009. "II Informe Anual del Observatorio Estatal de Violencia Sobre la Mujer". [Second annual report of the National Observatory for Violence Against Women]. http://www.inmujer.es/ss/Satellite?c=Page&cid=1193047406913&language=en_GB&pagename=MinisterioIgua ldad%2FPage%2FMIGU_contenidoFinal (accessed January 2010) [Google Scholar]: 92). Butler (2009 Butler, Judith. 2009. Frames of War: When is Life Grievable?, London: Verso. [Google Scholar]) also refers to the tests that new applicants for immigration in the Netherlands have to pass to prove that they value the rights of Lesbian, Gay, Bisexual, and Transgender (LGBT) people. Such Eurocentric attitudes frame Europeans (or Americans) as more "liberated" and "civilized" and fuel the rationale behind war as a mission to "save" Muslim women (Lila Abu-Lughod 2002 Abu-Lughod, Lila. 2002. "Do Muslim Women Really Need Saving?". American Anthropologist, 104(3): 783–90. [Crossref], [Web of Science ®] , [Google Scholar]). Frontex's budget increased from approximately [euro]12 million in 2007 to [euro]24 million in 2008 for the Spain–Africa area. 2011 is the first year in which the budget decreased, from [euro]92,846,982 in 2010 to [euro]88,410,000 in 2011 (Frontex 2007–2011). Prominent among these right-wing groups are the National Front in France, the Lega Nord in Italy, the Dutch and Austrian Freedom Parties, the Sweden Democrats, and the True Finns (Peter Walker and Paddy Allen 2011). With the Dutch Freedom Party in the government, Denmark announced in June 2011 that it had restored border control for travelers from Germany and Sweden. France closed its borders with Italy after the Italian government gave temporary permits to Tunisian migrants passing through Italy to reach France. The European Commission decided in June that member states could restore internal border controls in "exceptional circumstances," including "catastrophes" like "terrorism, war, or famine crisis" (El País 2011 El País. 2011. "La UE volverá a tener fronteras internas en casos excepcionales". [The EU will recover internal borders for exceptional cases]. http://www.elpais.com/articulo/internacional/UE/volvera/tener/fronteras/internas/casos/excepcionales/elpepiint/ 20110625elpepiint_6/Tes (accessed June 2011) [Google Scholar]). These migrants were Romanians and Bulgarians, who can move freely in EU territory. The European Commission threatened France with an investigation that never took place (BBC News 2010 BBC News. 2010. "Q&A: France Roma Expulsions.". http://www.bbc.co.uk/news/world-europe-11027288 (accessed November 2010) [Google Scholar]). Regarding economic regularizations (when undocumented workers can obtain papers if their employers offer them a contract and social security), a dominant interpretation in Spain is that employers benefit undocumented workers by asking for their papers, as if signing a contract with a worker was a favor when it is the legal and mandatory thing to do. Non-regularized migrants continue to face possible deportation, but employers are rarely punished (Suárez-Navaz 2004 Suárez-Navaz, Liliana. 2004. Rebordering the Mediterranean: Boundaries and Citizenship in Southern Europe, New York: Berghahn Books. [Google Scholar]; Arango and Jachimowicz 2005 Arango, Joaquín and Jachimowicz, Maia. 2005. "Regularizing Immigrants in Spain: A New Approach.". http://www.migrationinformation.org/Feature/display.cfm?ID= 331 (accessed December 2009) [Google Scholar]). I thank Steve Torrente for this translation. The problem of finding the truth and of the subjective application of the law is not unique to asylum hearings or undocumented migrants' testimonies in humanitarian exceptions. But it is more acute in those cases. In a court setting, if the alleged victim is an undocumented migrant, she is not presumed innocent as a citizen is. There is suspicion of her guilt because there exists the idea that she did something illegal in the first place. I thank Steve Torrente for pointing out the epistemological problem of finding the truth and Liliana Suárez-Navaz for her insights regarding the question of suspicion. I should mention a difference between Tictkin's "spaces of juridical indeterminacy" and Butler's "quasi-legal systems." Ticktin argues that in spaces of juridical indeterminacy, like policing at borders, the gatekeepers, such as police officers, exercise sovereign power over undocumented migrants' fate because undocumented migration is a realm where law can be suspended as in a state of exception (2005). For Butler, on the other hand, it is not that law is entirely suspended as in a state of exception; instead, there is no clear limit on state arbitrariness regarding the rights of, and violence against, people – in this case, migrants (2009). For example, for Ticktin, the Guantanamo Bay prison is outside the law, while for Butler it is a "quasi-legal system in the name of national security" (2009: 29). Nevertheless, both authors connect immigration policy with gender and sexuality and reflect on how concerns for women's rights can bolster the fight against undocumented immigration. All quotes from AI Spain reports are my translation.