- Mainstream feminism and its punitive or ‘carceral’ tendencies
- What are the carceral tendencies in PSEA?
- Punish-and-exclude regimes disproportionately affect national staff and local workers
- Prohibitions on transactional sex and policing sexual relationships of aid workers with locals
- What other forms of feminism are being put aside and what are the (unintended) consequences?
- What would a bottom-up Safeguarding practice look like?
What brand of feminism is driving efforts to prevent sexual exploitation and abuse (SEA), and is it helping us to achieve desired change? When we proclaim affinity with Black Lives Matter and decolonising aid, does that also require re-examining the feminism being used to tackle Protection from Sexual Exploitation and Abuse (PSEA)?
This article traces the feminist impulses behind the UN standards on PSEA promulgated nearly 20 years ago, and the current trends behind #aidtoo. It asks what feminisms are being left out of the discussion on approaches to sexual misconduct, often referred to as ‘Safeguarding’, especially those emerging from a bottom-up, Global South perspective.
Mainstream feminism and its punitive or ‘carceral’ tendencies
The ‘governance feminism’ The term was coined by the editors of two volumes of collected essays on tracing the role of feminism in influencing political and legal agendas. See, Janet Halley, Prabha Kotiswaran, Rachel Rebouché, and Hila Shamir, Governance Feminism: An Introduction (University of Minnesota Press 2018) and Governance Feminism: Notes from the Field (University of Minnesota Press 2019). project traces the inclusion of feminist ideals that ‘walk the halls of power’ and have shaped advocacy strategies, policies, laws and treaties within governments and international institutions and NGOs. In looking at what types of feminisms have been included, it also examines what feminist approaches have been put aside in that process and the unintended consequences.
Governance feminism has noted that increased prosecutions and convictions, both domestically and internationally, have largely been the measure of success in addressing gender-based violence. ‘Carceral feminism’ is used to define this increasing turn by feminists to the criminal justice system as the means to end violence against women. While the radical feminism of the 1970s was grassroots, it found its way into power by connecting with the ‘tough on crime’ approach of the 1990s, and faced little resistance from right-wing politics.
Those carceral trends show up in many different violence against women projects, from the criminalisation of buying sex in an effort to eradicate ‘commercial sex’ as inherently exploitative to stricter standards for establishing consent in sex crime prosecutions, ‘no drop’ prosecution policies in intimate partner violence cases See, Leigh Goodmark, ‘The Unintended Consequences of Domestic Violence Criminalization: Reassessing a Governance Feminist Success Story’ in Janet Halley, Prabha Kotiswaran, Rachel Rebouché, and Hila Shamir, Governance Feminism: Notes from the Field (University of Minnesota Press 2019). and an increased focus on prosecutions of conflict-related sexual violence in domestic and international courts. See, Karen Engle, Vesuki Nesiah, and Diane Otto, ‘Feminist Approaches to International Law’ in Jeffrey Dunoff and Mark Pollack, eds, International Legal Theory: Foundations and Frontiers (Cambridge University Press: 2020).
Little has been written about the carceral feminist tendencies in the PSEA agenda.
What are the carceral tendencies in PSEA?
SEA is an umbrella term coined by the UN in order to address the fallout from the ‘sex for food’ scandals from 2002 and to address the sexually exploitative and abusive conduct committed by aid workers against aid recipients. Through the IASC Six Core Principles, the term has come to reflect prohibitions against paying for sex, soliciting sex, trading aid or jobs for sex, sexual activity with someone under 18, sexual assault and includes attempts to regulate sexual relationships between workers and community members. Although the large majority of cases I have investigated involve employer code of conduct violations, not criminal conduct, the PSEA agenda has a strong thread of carceral-like punitive and exclusion measures as the solution to sexual misconduct that are further exacerbated by overly broad rules of sexual behaviour in codes of conduct. It generally fails to consider transformative, reparative and restorative models.
Punish-and-exclude regimes disproportionately affect national staff and local workers
The Interagency Misconduct Disclosure Scheme (MDS) creates a standardised format and platform for INGOs to exchange reference checks, including specific disclosures of ongoing investigations or findings of sexual misconduct. The Aid Worker Registration scheme is exploring ways of ensuring all aid worker assignments are recorded (possibly with biometric data), to ensure no previous employers can be left off of reference checks. These efforts aim to stop ‘perpetrators of sexual misconduct from moving between organisations undetected’. Others have previously raised concerns about these schemes citing the lack of consistency across the sector in defining and applying sexual misconduct provisions and corollary concerns about fair processes supported by proper investigative capacity, as well as privacy concerns for collecting aid worker biometric data when organisations have had aid recipient data stolen. While these reference checking schemes seemed to respond to the ‘Oxfam scandal’, where one of the identified problems was that a white, male international country director was able to move around to different postings and organisations after separating from an organisation in relation to allegations of buying sex from local women, this has had a disproportionate impact on national and local staff who make up 90% of aid workers. As one commentator put it, excluding people who cause harm may not be the radical politics we think it is, and that it only ‘moves the problems around rather than addressing them…outsourcing our harassers to women in lower-status, lower-paid economic sectors’. Allison Phipps, Me, not you; The trouble with mainstream feminism (Manchester University Press:2020). For INGOs, that likely means exporting harassers to local organisations or companies that don’t require (or local labour law won’t allow) the same sharing of personal data.
Perhaps no programme is more reflective of current carceral tendencies than Project Sorteria, run by Interpol and funded by the UK Foreign, Commonwealth and Development Office (FCDO). With a strong emphasis on building capacity of local law enforcement to investigate criminal conduct and create better criminal checks, it seeks to secure criminal convictions and keep convicted sex offenders out of the aid sector. We have to question whether that is the best investment, considering that even in countries with longer histories of funding sexual assault prosecutions, there has not been the corollary increase in reporting or conviction rates, despite increased awareness and protections in law. For example, using 2020 crime data, RAINN estimates that out of every 1,000 sexual assaults in the U.S., only 31% are reported to police, only 5% result in arrest, less than 3% end in conviction and 2.5% result in incarceration. Yet the Independent Commission for Aid Impact noted that most of the cases being disclosed to the FCDO ‘are workplace misconduct issues between staff including, but not solely comprising, sexual harassment’.
Prohibitions on transactional sex and policing sexual relationships of aid workers with locals
The IASC Six Core Principles are the foundation for PSEA rules of conduct. Everyone will likely agree on the core prohibitions on sexual conduct that directly relate to abuse of position or authority (trading jobs or aid for sex) or sexual abuse and assault. However, two of the standards –complete prohibition on transactional sex outside of trading organisational resources and the permissibility of sexual relationships generally between aid workers and community members – should be up for renewed debate. These arguments are not new, but perhaps now with our emphasis on actively becoming anti-racist, decolonizing, and non-hegemonic, we are more ready to acknowledge the problems inherent in this approach, what values we are promoting and unintended consequences that result. See the writings from Diane Otto, Olivera Simic Jasmine Kim Westendorf, and more recently from Guilia Piccolino and Kristin Bergtora Sandvik. Other researchers are also commenting on how the aid sector should reconsider its policies and programmes around transactional sex rather than continue its stigmatisation of it.
A prominent coalition within the anti-trafficking movement is actively anti-sex work,[foonote]As identified in the study by Elizabeth Bernstein that originated the term ‘carceral feminism’.[/footnote]seeking to eliminate all forms of prostitution through criminalisation. These anti-sex work, carceral-like impulses have become the foundation of the PSEA agenda. Both the UN definition of ‘sexual exploitation’ for PSEA and the UN definition of trafficking in persons from the Palermo Protocol that supplements the UN Convention Against Transnational Crime include language around the means of commission involving ‘abuse of position of vulnerability’ or power. While there is disagreement within the anti-trafficking movement over whether ‘sexual exploitation’ includes all sex work, The UNDOC Guidance documents on the Palermo Protocol make the distinction that the ‘exploitation of prostitution’ does not refer to prostitution per se, but ‘rather to deriving some benefit from the prostitution of another’, and strongly suggesting that sex work in and of itself should not be considered ‘trafficking’. the PSEA standards go even further down the carceral path and inherently define all transactional sex, and all sex work, as sexual exploitation. It does so by drawing on the definition of sexual exploitation from the Palermo Protocol and pairing it with IASC Principle 3 which includes an absolute prohibition on the exchange of money, services or goods for sex. Thus, in the context of PSEA, ‘sexual exploitation’ has become shorthand for ‘commercial sex.
IASC Principle 4 goes even further towards re-entrenching ‘unequal power dynamics’ by trying to govern the realm of permissible relationships between aid workers and community members. It is the only principle that has changed since they were initially released in 2002. Originally, it stated that sexual relationships between humanitarian workers and ‘beneficiaries’ should be strongly discouraged. In September 2019, this was changed to prohibit sexual relationships ‘between those providing humanitarian assistance and protection and a person benefitting from such humanitarian assistance and protection that involves improper use of rank or position’. Neither the original nor the revised standard lend themselves to easy comprehension or objective enforcement. And in a post-#aidtoo world, many INGOs, in an attempt to seem ‘tougher’ on PSEA, strengthened their interpretation by prohibiting all relationships between their workers and aid recipients or members of communities where they work.
InterAction’s short videos on the IASC principles state that ‘Humanitarian and development workers are not allowed to have sexual relations with anyone receiving assistance or services, even if they are willing’. This reading seems to presume that one’s status of employment necessarily means improper use of rank or position if one has sex with anyone in the community being served.
We know that, in the calls for localisation, more jobs are going to national staff, partner staff and community members themselves as short-term workers or casual labourers – and all are expected to abide by these policies equally. Were there any discussions to consider the inordinate burden placed on local staff if they are not to date within their primary dating pool?
What other forms of feminism are being put aside and what are the (unintended) consequences?
Critical voices, especially from the Global South, have generally been left out of discussions on sexual violence, as many women felt more in common with their compatriots of all genders in throwing off legacies of racism and colonialism than with the white saviours who came to save brown women from brown men’. See, Gayatri Spivak’s seminal article, ‘Can the sub-altern speak?’ that discusses the concept of the ‘white saviour’ saving brown women from supposed harmful cultural practices in their colonial rule, while masking their own roles in oppression and silencing the voices and perspectives of those sought to be saved. In that landscape, transnational feminism emerged – it prioritises addressing economic and structural barriers inherited from colonialism as the root causes of inequality and violence, believing that excessive attention to individual harms through individual punishment distracts from the real politics of feminism – seeking systemic change as an emancipatory project.
A transnational feminism advocates for the rights of sex workers, not their prohibition or the criminalisation of buyers of sex, which further contributes to the harm of sex workers themselves. The human rights movement more broadly is moving towards full recognition of the rights of sex workers as both a human rights and labour rights issue, as reflected through the positions of Human Rights Watch, Amnesty International and a ground-breaking and well-researched publication in 2021 by Front Line Defenders, Sex workers’ rights defenders are human rights defenders.
A transnational feminism also calls into question the almost voyeuristic and ‘othering’ undertones of IASC principles 3 and 4 with respect to local women’s sex lives. When these principles are read together they appear to prohibit not only commercial sex, but any transactional aspect of ongoing sexual relationships or occasional selling of sex by women and to define any relationships between workers and community members as exploitative.
The aid sector continues to exceptionalise women With full recognition that men, boys, transgender, non-binary and all other culturally appropriate terms for people living outside the gender binary can and do experience sexual violence by aid workers, the carceral feminist approach has tended to over-emphasize and essentialise the female experience, and I rely on the female pronouns to reflect discussions centred on the heterosexual female experience. from the Global South in how they navigate their lived experience with poverty and their decisions on adaptive protection strategies. For example, an independent review into PSEA practices by members of the Australian Council for International Development seeks a middle ground by being pro-sex worker’s rights while justifying the appropriateness of restrictions on transactional sex in the humanitarian context. It is difficult to logically wear these two hats at the same time: the protectionist rationale reproduces colonialist tropes that people are too poor to make decisions in their own self-interest so we must do it for them.
And as research from both the US and globally demonstrate, women from low-resource communities in both donor and aid recipient countries may engage in transactional sexual relationships/partnering in order to economically benefit themselves and their families. A study of youth in Liberia noted that there is a complexity to sexual economies, and that young women often felt that transactional sex gave them a sense of agency and control. Research in Haiti reflected that women who engaged in regular or occasional sex for money or goods, or developed relationships with UN peacekeepers in which they expected and received goods or monetary support, generally considered these acts as beneficial – some even claimed empowering – in their attempts to educate or otherwise gain economic benefits for themselves and their families.
Yet, we spend time and resources to police transactional aspects of relationships in aid settings, causing more harm in the process. In my years of conducting investigations, allegations involving transactional sex or local relationships are most often made against staff who are not well-liked, typically for reasons of bullying or poor management that senior management has failed to address. Investigators are faced with gendered stereotypes about the woman’s behaviour from reporters as evidence he is breaking the rules. Witnesses discuss what she is wearing, how she is acting or dancing, and being the ‘wrong type of lady’. If we are ever to interview this woman, the process of substantiating the allegations require enquiries that inherently express our judgment of her for engaging in transactional sex or relationships. It is something she is unlikely to admit if it is against her self-interest, such as causing the staff to lose his means of supporting her, or causing her internalised shame. Sometimes we are also faced with male elders trying to police women’s behaviour by calling in INGO investigators when women appear to be having extramarital sex.
What if we were to actually quantify the economic benefits being distributed via transactional sex by aid workers? Some women report that aid workers are generally better clients and pay more for sex. One study estimated that, during post-conflict reconstruction in Monrovia, Liberia, more than 50% of the female population in the city engaged in transactional sex.
Do we regulate individual behaviour because otherwise we might be forced to admit that our interventions aimed at addressing distributional inequalities are failing when people are still seeking out transactional sex to fulfil their unmet needs? If we don’t have any meaningful strategies or resources to help women meet these needs, are we setting them up for more dangerous risk-taking behaviour instead?
Rather than viewing PSEA from a moralising sexual perspective, it would be more helpful to write standards of conduct that reflect what is within an organisation’s legal responsibility, under both common law For example, under US tort actions, an employer can be held indirectly liable for acts of employees (vicarious liability or respondent superior) for wrongdoing and harms caused by its employee during ‘the scope of employment’. See §§ 4.01 and 4.03, Restatement Third, Agency. Employers can also be held directly liable under the tort of negligent hiring, retention and supervision for harms of their staff when they have reason to know the risk of harm staff pose towards others and take insufficient actions. Section 4.04 (c) Restatement of Employment Law, updated through March 2019. and civil law jurisdictions In French civil law, employer liability is reflected in Civil Code Section 1242, where liability for damages attaches the acts of those for whom he is responsible, including the specific example of ‘[m]asters and employers, for harm caused by their servants and employees within the functions for which they employed them’. to prevent, stop and correct: staff causing harm to others through the use of their employment. Using this guiding perspective of organisational responsibility for harm caused by staff, we could move away from the gender policing of sexual relationships ( that also shows up in GBV programming) which reinscribes neo-colonial interpretations of appropriate sexual behaviour for women and echoes conservative values of chastity and virtue through prohibitions on transactional sex defining the scope of permissible relationships with community members.
We should focus on abuses of organisational authority, replacing ‘sexual exploitation’ with the Transparency International term of ‘sextortion’ – which would encompass the misuse of a position in an organisation to trade aid or jobs for sex (a form of corruption) – in addition to continued prohibitions on sexual assault and sexual harassment in the workplace (trading job benefits for sex or creating a hostile environment through unwanted sexual comments or advances).
What would a bottom-up Safeguarding practice look like?
Transnational feminism’s anti-carceral approach does not mean lack of accountability: it means better responses that centre the harmed individual’s needs to repair harm. Transnational feminism also asks us to prioritise projects led by impacted persons and developed at the grassroots level over top-down approaches. For instance, Ugandan feminist Sylvia Tamale suggests that an Afro-feminism needs to move away from imported concepts of ‘gender equality’ and return to cultural roots of ubuntu, which are based in recognizing the humanity in each other (‘I am because we are’) and using a long tradition of community processes to facilitate the repairing of harms where they occur.
The Feminist Safeguarding Policy developed by FRIDA, the young feminist fund, fuses agency and empowerment with accountability. It moves away from a paradigm that presents Safeguarding as a protective project rooted in Global North principles that can infantilise young feminists, rather than a participatory one. They adopt an approach based on consent, cultural context and shared responsibility, and work with girls and young women in assessing and controlling risks. When harm occurs, the first preference is for restorative and healing justice to seek reconciliation, and as an opportunity for restoration and transformation from oppression and harm.
We can look to the Organisational Safeguarding Best Practices and Procedures: A Toolkit for Transnational and Intersectional Feminist Accountability Frameworks Produced in collaboration between Centre for Transnational Development and Cooperation (CTDC), and Women’s International League for Peace and Freedom (WILPF). , also developed through a participatory approach centring grassroots organisations. The toolkit highlights the current challenges to PSEAH progress and includes a solutions-oriented framework. Challenges include lack of clarity around the terms used to describe harmful behaviours, the inordinate attention on separating individual behaviours from systemic practices, and the stigmatisation of sex work that both reinforces conservative sexual norms and inhibits reporting of real harm. Among its solutions, the toolkit focuses on power and better accountability practices: distributing power more fairly in the organisation, as opposed to hierarchical governance, and employing a restorative practice that ‘strives to restore dignity and respect to survivors of violence and abusive practices in all their forms, and to redress the harm that has been done to them’.
Should we keep doubling down on a structure and system with so many foundational cracks, or is it time to reform the PSEAH agenda altogether? If we are truly interested in intersectional transnational feminism and decolonising aid, we need to re-examine our carceral impulses in PSEA by asking ourselves: who does it benefit and who does it burden in its practical application?
Carolyn Bys (email@example.com) is a lawyer and independent consultant in Safeguarding. Prior to working for a large INGOs as a Safeguarding investigator, she was an appellate criminal defence attorney and trained police and prosecutors internationally on investigating hate crime.