Keywords

Gendered violence (GV) policies and interventions aim to consider the rights of victims/survivors, such as the right to safety, dignity, and justice and are linked to fundamental questions of personhood, citizenship, and equality (Roseman and Miller 2011). Policies and services often consider how to include marginalised groups by making information accessible, such as translating information into different languages, or making individuals and identified communities aware of laws or other rules and behaviours, and where and how to access help (Love et al. 2017). While these are worthwhile approaches and work for some, they often fall down for a number reasons, not least because we cannot expect a “one-size-fits-all” approach to work for all groups (Crenshaw 1989; Kapilashrami 2020; Ryan 2019). This chapter considers women’s cultural backgrounds and the ways consent might play out across refugee and migrant communities. However, “culture” is considered here by examining the tensions refugee and migrant women might experience between taking up their rights, structural barriers, and their obligations to family, kin, and community. As discussed in previous chapters, debates concerning consent raise many issues and tensions, and there is a need to consider how interventions addressing sexual violence (SV) might be viewed by women from racialised minorities.

Refugee and migrant women in Western countries such as Australia face a paradox when faced with mainstream GV policy, practices, and laws (May 2015). Representations of refugee and migrant women as vulnerable and coming from backwards and oppressive cultures simultaneously challenge them to take up and engage with Western conceptions of GV, such as those of affirmative consent as an enthusiastic yes. However, there is little regard for the realities of how these principles will be applied, or the implications that mainstream discourse and interventions seeking to address SV might have for women and their communities (Kagal et al. 2019). In Australia refugees and migrants already face significant absences in mainstream policies directing GV interventions and can experience racialising practices that limit their access to essential services (Ghafournia and Easteal 2018; Maturi and Munro 2023; Vaughan et al. 2019). Sometimes accessing services and systems can entrench inequalities and disadvantages for women, such as poverty and homelessness (Maturi 2023), unintended legal consequences for seeking help (Douglas 2021; Sandra Walklate and Kate Fitz-Gibbon 2021), and risk interventions by other government departments, such as the Departments of Child Safety (Kaur and Atkin 2018) or Immigration (Segrave 2017). On the other hand, women might also be part of marginalised communities struggling with their own inequalities that might not consider gender a priority and can place women at further risk of violence (Bartolomei et al. 2013; Fisher 2013; Maturi 2022). Rather than encouraging women to take up their rights via current, mainstream interventions, this chapter serves as an invitation to groups directing GV interventions to consider efforts that focus on how to ensure a rights approach is affirmed in responses to SV and consent.

Using Sally Merry’s (2003) concept of a ‘rights consciousness’, this chapter explores the perspectives of 19 refugee and migrant anti-violence advocates on the affirmative consent campaign in Australia. Merry draws on post-structuralist critiques of subjectivity that posit the self as defined by multiple subjectivities. Heron (2005), for example, discusses the differences between your social location, such as your gender, race, or class status, and your positionality. Your positionality draws from your own lived experience, values, and beliefs about how the world works, and thus undergird your actions (Goodkind et al. 2021). While an individual’s sense of self might be a product of choice or agency in some contexts, the self might also be reproduced by dominant discourse and norms in changing historical and political contexts, and thus be determined, or influenced by, privilege, power, processes of inclusion and exclusion, and access to resources (Halley 2016). An individual’s sense of self can therefore face certain contradictions: Merry’s (2003) concept of a ‘rights consciousness’ describes the tensions women might experience when problems related to gender, such as SV and consent, are presented as a legal issue. In order for women to think their problems can be addressed by the law, what Merry describes as taking on a ‘rights defined self’, women need to have affirming experiences with systems and services and be able to reconcile these experiences with their ties to family, kin, and community.

The following section locates this research in an international context, considering the tensions between human rights discourse, law making, and the lived experiences of marginalised groups. The findings build on this context to highlight some of the complexities participants in this research raised for refugee and migrant women in relation to current discussions of consent, and how they may or may not come to take on a rights-defined self. Taken together, these findings advance the need to consider SV and consent not just in individualistic legal terms, but as an issue of social justice that considers broader, intersecting inequalities (Collins 2017).

The Law, Human Rights, and Sexual and Gendered Violence

The ways that discourse of women’s rights, as human rights, have travelled and been taken up across differing cultural contexts has been the subject of significant scholarship (Baines 2017; Merry 2011; Mohanty 2003). GV offences are a relative newcomer to human rights (Coates and Allotey 2023; Logie 2021). Despite the ongoing presence of violence against women throughout history, GV was not recognised as a human rights violation until the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) in 1979 and, later, other international conventions and declarations, such the Beijing declaration in 1995 (Merry 2009). Criminalising GV offences have been on the feminist agenda since the 1800s, however, laws that are in place today can mostly be credited to the “siren call” for law reform that came out of the second wave of liberal feminism in the 1970s (Drakopoulou 2007). Along with equal rights in the workplace, and reproductive rights such as access to abortion, liberal feminists problematised the patriarchal family and sought laws to address practices such as sexual assault and domestic violence (Gruber 2020). Drawing on Foucault’s theories of normativity, and Butler’s (2011) understanding of gender as performative, Roseman and Miller (2011, p. 318) highlight the contradictions between international regimes and law-making that ‘create the “new normal” for sexuality and rights’. Rather than rights afforded to a universal citizen subject, what makes a person a citizen is their ability to claim rights (see Altman 2001).

In Australia, human rights feature in national and state policy frameworks directing interventions aiming to address GV. However, references are scarce and couched in international terms, acknowledging a commitment to global efforts to reduce violence against women and children without considering how these rights might be implemented in an Australian context. Despite international obligations and being signatory to various conventions, human rights in Australia have been taken up and implemented in a “piece-meal” fashion (Seear and Mulcahy 2023). In Australia, there is no national “bill of rights”, unlike other Western countries built on liberal democracies (Australian Human Rights Commission). While most states have human rights “acts” or “charters”, at a national level each law that passes through parliament is assessed for what human rights it might engage, often civil or political rights. Proposed laws are then assessed for their compatibility with human rights, rationalising their legitimacy and justifying that they are “necessary”, “reasonable”, and “proportionate”. Seear and Mulcahy (2023, 2) point out, however, that:

crucially, even if a proposed new law would limit human rights, it can still be passed. Courts have very limited powers to adjudicate on human rights matters under the state and territory charters, meaning that the parliamentary scrutiny process is the dominant method for assessing and protecting human rights in Australia.

Australia’s track record regarding Asylum Seekers, with its offshore detention policies and temporary protection visas, provides one example of how state laws might limit human rights. Australia’s offshore detention policies have come to international attention for breaching human rights, however, there has been a lack of accountability or significant sanctions by the international community (Billings 2019; Boochani 2019). While the gendered nature of detention and offshore processing policies have received little attention in scholarship (Vasefi and Dehm 2022), of particular note to this chapter are sexual assault allegations made against guards and staff at the detention centre on Nauru (Freyer and McKay 2021). Sexual assault allegations made by women and children detained on Nauru have not made their way into SV and consent campaigns in Australia or garnered widespread attention from feminists in Australia. Human rights focus on the rights of the dominant majority, in this instance white, citizen, cis-women, while the case of women and children detained on Nauru demonstrate that:

People hold intersectional identities that also constrain the realization of sexual rights, including but not limited to race, disability, immigration and citizenship status, gender, and socio-economic status; and no one is inherently vulnerable, rather structural forces such as rights violations constrain access to power, agency and opportunity. (Logie 2021, 3)

While human rights might seem to be a safe conceptual space to draw on for GV policy and practices, then, cultural difference seems to be a logical reason to blame, excuse, or erase violence when experienced by cultural “others”.

Rather than being absolute, international laws are supposed to act as a guide to social norms for sovereign states (Merry 2009). However, rights discourse is also a product of dominant norms; policy and practices based on rights-based approaches usually align with the norms and agendas of dominant groups (Spade and Willse 2014). This can go towards explaining why, despite international recognition of violence against women and girls, and the mobilisation of women’s rights via institutions such as the United Nations, there continues to be a failure to adequately consider GV as a human rights issue (Merry 2011). Carastathis et al. (2018) rightly point out that while various forms of domestic violence have been established as human rights violations, refugees are seldom considered for humanitarian protection based on interpersonal violence. Across the globe, domestic violence, which includes SV in intimate relationships, continues to remain hidden as a private matter in the home and is therefore often shielded from being seen as a human rights violation (Gerber and Castan 2021). Seeing as international law is only enforceable by nation states, if nation states do not take GV seriously, which continues to be the case in Australia, then GV as a human rights issue is left wanting too (Roy 2015).

Despite the limits of policies and laws addressing GV, women from marginalised groups continue to be targeted in campaigns addressing GV. In the 1980s and 90s, second-wave feminists came under critique for interventions aiming to address ‘harmful traditional practices’ (Merry 2011) in countries labelled under-developed and “backwards”, such as those in Asia, Africa, and the Middle East. Examples of harmful traditional practices might include female genital mutilation, honour killings, or forced marriage, and are often linked to human rights violations in cultures that hold family, kin, and community as important. In response to the institutionalisation and global travel of a gender equality agenda theorised around the experiences of white, middle-class women, there was a proliferation of difference in feminist scholarship in the 1980s and 90s, calling for the recognition of diversity and systemic racism evident in ongoing colonial practices (Collins 1990; Mernissi 1987; Mohanty 1988; Moreton-Robinson 2021). However, liberal feminists such as Okin (1999) suggested that respecting all cultures under the mantra of multiculturalism and diversity conflicted with liberal values of equality and freedom, as some values and practices of “other” cultures ‘reinforce inequality and violate the rights of women’. Despite any reactions or debates counter to this perspective, during this time the United Nations implemented a number of policies and declarations along similar lines to the sentiments of Okin and other Western feminists which still stand today (Lombardo et al. 2017). CEDAW, for example, says ‘states should condemn Violence Against Women and should not invoke any custom, tradition, or religion or other consideration to avoid their obligation with respect to its elimination’ (Assembly 1993, article 4). The following findings provide insights into policy “gaps”, or rather the “limits of consent”, when considering the tensions refugee and migrant women might experience when faced with such binary definitions of terms and policy discourse.

Ideas of Consent

This chapter is based on 19 semi-structured interviews with refugee and migrant women anti-violence advocates in Australia, exploring their perspectives on responses to sexual violence and consent.1 This research builds on a previous project exploring responses in human services to the issue of domestic violence and refugees (see Maturi 2022, 2023; Maturi & Munro, 2023). All the participants in this research agreed with the premise of affirmative consent: “my body = my consent”, women’s rights are human rights and the illegality of SV. However, participants often disagreed with mainstream media and education campaigns, or the delivery of the information. Participants suggested there were cultural nuances that were not taken into account in mainstream campaigns. Discussions also noted differences both between and within ethnic groups and communities, highlighting that a “one-size-fits-all model” cannot be applied to refugee and migrant women as a homogenous group. The participants in this research, for example, varied greatly in terms of their ethnic or religious backgrounds, their migration pathways and time in Australia, and their own opinions or positions regarding culture, violence, and consent. Participants often spoke from two different subject positions; as a worker or advocate, and as a member of their own ethnic or religious community. Regardless of social location or positionality, there were common themes that arose in the data, displaying the tensions refugee and migrants might face when presented with arguments that frame consent in terms of victim’s rights: 1. Marriage is consent, 2. Loyalty to men, and 3. Experiences with “justice”.

Marriage Is Consent

Understanding under what conditions an individual victim comes to redefine her problem as an offense that violates her rights, rather than as a burden of everyday married life, is critical for the study of rights in social movements. (Merry 2003, 346)

Often rights rhetoric is directed at newly arrived refugees and migrants, based on a belief that women might not know what GV is and need education on laws and services available to help (Maturi 2023). Many participants linked traditional gendered roles to cultural understandings of marriage. Marriage was described as important in many ethnic/racial and religious groups.

I said, “Tell me what your wedding day is gonna look like.”…They can tell you every fork, and the last bloody spoon—they can tell you exactly what their wedding day is gonna look like, and what cake, and how many people, and where, and who ...and how long, and whatever. “Tell me what’s gonna happen the day after you get married” [silence]

...The fact that [sex is] happening, that’s natural...never mind that I don’t get any pleasure out of that, never mind that I hate when it’s happening, never mind that I’m tired...never mind 150 other different things.” So, she puts up with it. She becomes sex on demand. He expects it. And this idea of enthusiastic consent...

The above participant identified as South Asian and 6th generation Australian. She said that many of the women in her community have similarly been in Australia for generations.

They are born in Australia, like myself, fifth generation, family has been here 50 years, but still has strong social and cultural connection to their homeland…So they understand social custom, community expectations, religious obligations, tradition, culture, all those things. There would be today second, and third, and fourth generation Australian girls born and brought up in this country who would still go back to their home country and have an arranged marriage—that’s the system. And people say, “Oh, well you haven’t assimilated. You haven’t acclimated. You haven’t done all those sorts of things.” They probably have and they’re being educated...but they understand that commitment to their cultural expectation.

It wasn’t always that women weren’t aware of or couldn’t define violence, or that they didn’t know where to get help, but that women might be tied by their obligations to family, kin, and community.

There’s that expectation that from [marriage], some women, they move in with their husband and his family. If the woman sleeps in a different bedroom, the whole family gets involved. Like, it’s really—I know in many cultures, the parents-in-law, the mother-in-law lives in the house with the couple…

So, you’re really talking about concepts that maybe for us—because we fought for gender equality and we fought for so many rights in our countries...But when you try to explain a concept like that to a woman who doesn’t know, she really doesn’t know.

This participant, from a Middle Eastern country, delineates between herself as a worker and advocate for women’s rights, and ‘a woman who doesn’t know’. Lifestyles, beliefs, and cultural practices might vary greatly between regions, they might also differ between individual families. There are many countries in the Middle East, for example, each with different histories, politics, and cultural practices. Differences might also occur between cultural or religious groups, ethnicities within countries or regions, or even those coming from more urban areas where some might have greater access to education and resources than those from rural areas.

Despite these differences, many participants discussed that for refugee and migrant women they supported, as a burden of married life saying no to sex was not an option nor something that was considered. Participants said women would recognise physical abuse as domestic violence or might experience rape as non-consensual and sometimes violent sex, but they would put up with it because of obligations to family, kin, and community. A South American worker from a migrant service talked about how she framed the issue of SV as a human rights issue:

Women often don’t identify SV in DV...You actually have to bring it up… women are more likely to respond and say, “Well, actually, he still demands it and I don’t want it, but I still go along with it.”...So, when you say, “Actually, that is assault. You have a right to say no.” And it’s a bit of a moment of ... “Oh, gosh, you mean I can actually say no?”...they’ll give you the “Yeah, but it’s my obligation. It’s my role. I’m married. It’s expected of me.” I approach it with more of a—“It’s abuse of your human rights because you have a right to be safe”

This participant said human rights discussions were particularly useful for women who had come as refugees, as they had often learned about human rights along the refugee journey. However, there still appeared to be discomfort around the terminology of “women’s rights”: ‘I think they understand the idea that their right as a human person has been violated rather than knowing you have a right as a woman to say no’.

It was discussed in the interviews that in all relationships, and this includes Western cultures, it might be difficult to ascertain whether sex is consensual as per the definition of an “an enthusiastic yes”. This young worker from a South American background discussed the pressure to conform to gendered expectations placed on women as sexually passive and pleasing, and the social sanctions that might come from saying no (Bay-Cheng 2010):

I can say no but then what? I’m going to be a crazy cat lady. There’s definitely something wrong with me if I can’t have a husband and children. Am I strong enough to face that reality and then have casual sex because I’m a cool single woman? No. Yes, I think I’m divided always because I think things are changing a lot...young people and people from all backgrounds saying what we want to say...but that is again fighting with that monster that has been with us for centuries.….I think it’s going to take years. Generations even...I don’t think I’m going to live to see a big change...

Taking on a rights-defined self as a subject position is a complex process shaped by dominant norms, and how those norms determine reasonable behaviour and, thus, autonomy and choice. When women do decide to take on the position of a rights-defined self, they are “trying it on for size” so to speak. Whether they maintain this subject position depends on various responses to this new self, and if it is worth it. ‘Those who press on….are people for whom this new position has something to offer. Perhaps they have less to lose from others who oppose them’ (Merry 2003, 350).

Loyalty to Men

Her actions allow the law to define her husband/partner as a criminal under the surveillance and control of the state. A battered woman may be pressured by kin to feel she is a bad wife, while her partner may claim she is taking away his masculinity. The only way she can rescue him from this loss is to deflect the very legal sanctions she has called down upon him. It is hardly surprising that abused women will ask for help from the law, back away, and then ask again. (Merry 2003, 345)

In the interviews with refugee and migrant advocates, masculinity was often tied to culture. Other research on DFV—domestic and family violence—(Fisher 2013; Maturi 2022) has discussed in greater detail that refugee men, and some migrant men are dealing with changing gendered norms as part of the migration journey. A backlash to gender equality is discussed as resulting from a loss of culture, tradition, and status as “head of the family”, in a broader context of inequality and discrimination in the new host country. These same ideas were discussed in relation to sexual assault.

Often relating to experiences from their own culture, participants discussed that in some cultures women and men are not taught about dating and relationships, let alone sex.

My parents were very modern compared to some people I grew up with. But you basically don’t have a relationship. You don’t touch another male. You don’t even have a boyfriend...I was not allowed to talk to a boy on the phone until I think I was 20...Sex is not really talked about until the night before your marriage…

We can’t just educate the women and the men are sitting there having this expectation [of sex in marriage]. They’ve lived in privilege all their life. They don’t want to lose that easily...sex is this thing which is so important in my community...it almost is attached to a man’s manliness and his worth as a male in the community... they feel like it’s their right because they’ve been denied this right all their life.

The loss of male privileges in the face of women’s rights and equality, in this instance the right for women to say no to sex, was said to cause a backlash from not only men but also from family and community. As discussed earlier, some ethnic communities were identified as having rigid customs and rules around family practices.

If we’re talking about the family violence and you’re wanting to explore SV…it’s around what is your right to say no? What is the gendered norm?….The ramifications if you’ve entered into a marriage where there were dowry, the ramifications if you leave that relationship.

And, unfortunately….we would like to think that culturally-specific services, faith communities are going to be a harbour for people and often, just like any other church in the Western world, any other community group….they can often be very blaming...it’s gonna be a silencing. You do risk being ostracised from your community because why didn’t you work it out?….Why didn’t you, woman, work this out?

It might be tempting here to consider practices rooted in tradition and kinship structures, such as arranged marriage, to be the problem. However, the construction of “woman” as homemaker, as the thread that holds the family, community, and society together, is familiar in Western culture and institutions as well. Women and men are expected to perform certain masculinities and femininities within and across differing cultural contexts. In this instance, for men who are experiencing a ‘loss’ of masculinity due to the migration experience, who might be seeing new legal rights and independence given to women and children, women might feel more pressure to forego a rights-defined self in order to ‘recuperate his masculinity’ (Merry 2003, 37). Women might feel the need to demonstrate loyalty to family and community or try to avoid sanctions, such as being ostracised or face additional violence.

Regarding reforms to sexual consent laws, there were fears for men who occupied subordinate status because of race, class, and citizenship. Deporting men for criminal offences came up. For ethnic groups in Australia who might be racialised and criminalised, such as African young people, there were fears that the whole community might get blamed for young people’s misunderstandings over consent. In the following quote, we see a historically supported fear of black men being accused of assault because of their relations with white women.

There’s example…Congolese community, they say their young people have some kind of court order…because they have a relationship with mainstream or a white community, and then they become in trouble because they understood the sign wrongly...“She came into my house, so what do I have to do? And she was in my bedroom. I kissed her, she kissed me. So, what is the problem?”

…and then they were been sharing it was a problem for very young people...sometimes I think they just listen but are not picking up on it, because—you know kind of—oh, this is a ‘white’ kind of law. Your mind is kind of partitioned.

The conflict between considering the subordinate status of men who might not have access to the cultural conditions that make a ‘good masculinity’, and what this means for women in a broader context of individual safety and equality, is something both scholarship and practitioners are currently grappling with (McCook 2022). That men (or women) from refugee and migrant communities might not see laws as relevant to them is an insight often overlooked in attempts to engage women as rights-bearing subjects. As Merry (2011) says, you cannot enforce a law that the majority of a population does not support. As discussed in the following section, responses from Western, masculine institutions such as the legal system might also reinforce this.

Overwhelmingly participants in this study discussed the need to develop strategies that focus on education and violence prevention, rather than criminalistic solutions that aim to hold perpetrators to account after the fact. Discussions of masculinity and changing gendered norms were not to shift the blame or to make excuses, but highlight the importance of addressing inequalities effecting men as well to increase the capacity of community to respond to violence. Some organisations were developing and implementing their own programs aimed at engaging men in violence prevention, based on community peace-building techniques.

We thought we were doing the right thing, a feminist thing by empowering the women….So I went to my CEO. I’m like, “We’re doing the wrong thing here. We are leaving the men behind and we actually need to empower them as well.” So, all of our programs now are offered just men and women, because we wanna empower the whole family, and this actually keeps her safe and it keeps them together, without the conflicts because we’ve just now stripped him of who he sees himself, his whole identity”.

In the context of the nation state, racism, and citizenship, for some saying #metoo might jeopardise not only their own safety and security, but that of their partners, husbands, or men from their particular ethnic, religious, or cultural communities (Kagal et al. 2019). Loyalty to men is thus a significant consideration in how women, or men for that matter, come to see themselves in terms of rights, and whether or not they come to take on rights defined self protected by the state.

Experiences with “Justice”

One of the powerful consequences of bringing gender violence cases to the attention of the legal system is the victim’s and perpetrator’s encounters with the new subjectivity defined within the discourses and practices of the law. Interactions with police officers, prosecutors, probation officers, judges, shelter workers, feminist advocates...affect the extent to which an individual victim is willing to take on this new identity. (Merry 2003, 346–347)

We have seen so far that women might go back and forth “trying on” a new rights-bearing subjectivity for size, drawing on various experiences in the communities they live and testing the reactions of husbands, partners, and extended family. Those who do come to reach out to the law or services for help have often experienced some kind of reinforcement/s to “press on”. This final section discusses responses by frontline services addressing domestic, family and SV, and the law.

Policies that have traditionally focused on DFV have a new focus on SV; the new National Plan to End Violence Against Women and their Children (2023–2032), for example, has changed the terminology of “domestic and family violence” (DFV) to ‘domestic, family, and sexual violence’, and this has quickly been adopted in the service sector. Most of the participants who participated in this research were from DFV services. SV was discussed as needing a more trauma-informed approach, rather than more action-oriented and legal approaches that DFV services usually take. It is important to note here that definitions of DFV in legislation also include SV. DFV workers often said they know that SV is usually present in relationships where there is DFV, but they would skim over it in risk assessment tools or initial discussions due to discomfort, and cite a lack of professional skills. Asked if she felt comfortable discussing SV with clients, this participant from a DFV-specific service, who was second-generation Italian, said:

I wouldn’t say that I do, no…we definitely would refer on to....more specialists support workers…that would definitely be where my role ends in the sense of supporting the client with the healing or the unpacking of [SV] because we don’t provide that more counselling role. And like I said, we could do that more hands-on stuff like support them to make a report to the police and that sort of stuff.

I wouldn’t even, to be honest, know where to start. It’s not even been a big conversation that I've had with somebody, if that makes sense.

This discomfort potentially reinforces SV as taboo and shameful, and thus has ramifications for how women come to define themselves in terms of a rights-defined self.

If services are taking up discourses of SV and consent, there is bound to be greater attention to women’s vulnerability as victims of SV. This participant from a SV counselling service discussed the case of a client who was not aware she had been referred for sexual assault counselling.

With all the interpreters and the language barriers ... and in the middle of the session...she said to me, “I thought that I came here to access financial support?” And I said, “No, this is sexual assault counselling services”, and she laughed. She couldn’t stop laughing and she said to me, “Do you think that I need help because I was raped? I need money...I don’t think about that anymore. I just need food and I need to survive. I don’t need support with this...Get me out of here. I need money.”

Merry (2003) talks about the ‘good victim’: The good victim is willing and obliging, she follows through with the help that she seeks and embodies the submissive, quiet, and well-behaved femininity expected of women who are vulnerable. Women who do not fit the image of the good victim, such as laughing at counsellors, denying that they need help, are reluctant to report to the police, or who are seen to be demanding welfare resources, for example money or housing instead of counselling, are seen as difficult, troublesome, underserving, and can be less likely to receive assistance. Workers might have limited services to offer outside of counselling and assistance to access legal help and become frustrated at not being able to meet the needs of clients (Maturi 2023).

The ‘good victim’ also came up in discussions of women accessing legal help for sexual assault. For women who could not speak English, or who might be emotional and seem to be acting irrational or aggressively, participants discussed the risk that police might not take the complaint seriously, might take the man’s side, or might even misidentify women as perpetrators of SV, as they so often do with DFV offences. Participants also discussed that women would sometimes experience racism, and sexism, from police. One participant was a survivor of DFV, and talked about the negative responses she received from police:

They made me feel bad….the police laughing on me, asking me, “Where you come from?” I say [Asian Country] and they’re laughing, I said, “What’s funny about?” –[they] laughing and then they do not believe, because some of the police are very, very, very nasty, and some they do sexual harassment themselves.

Asking women to take up an autonomous sense of self protected by the state, when they have experienced violence at the hands of the state, was often discussed as not only confusing women but making women cynical of the justice system to begin with. On this point, all of the participants who participated in this research discussed that the law was useful to provide a guide or benchmark to social norms, and what not to do. But there were also problems with the law. This manager from a migrant-specific service, who had been working in the GV sector for over 30 years, said:

In many ways, it makes almost our conversations with migrant and refugee communities easier...It may be culturally acceptable in some parts of your community but it is definitely against the law...[but] Legislation itself, it’s never enough. You need a range of support measures in place to hold that woman who reports it, to believe her, to reinforce the messages...if there is no support systems for victims in place, then they feel cheated by the law...when they don’t get the outcome that they deserve, what are the messages that we are enforcing? No one will believe you. I told you so. So it really gives some leverage to the abusive person to continue doing what he was doing.

As Halley et al. (2006, 337) say ‘punishing conduct as a crime does not “stop” or “end” it…rather, it enables a wide range of specific institutional actors to do a wide range of things’.

While affirmative consent interventions are aimed at people in intimate relationships, it was discussed that the Australian government and gender equality advocates turn a blind eye to other forms of GV, such as human trafficking. One participant had been running her own, self-funded organisation for over 10 years. She helps women in her community because she says they don’t get the help they need from mainstream services and systems.

They text me, ask me for help because I open the inbox 24 hours on my Facebook...the brothel or the massage shop that they do a prostitute job in the back. It’s like they lie to the young woman...“I will give you the student visa. I’ll give you the tourist visa but you come here and you can work as a farm-picking and you can work as a massage.” And someone picks them up from the airport and took their passport straight away, and sends them to the farm and got a sexual assault, sends them to the brothel, sends them to the massage shop and never got paid, and give them drugs for them to not run away, took their passport. It’s a very sad story. Some of them died too trying to escape.

The point to make here is not the vulnerability of women trafficked for illegal sex work, or their invisibility, as we know they exist. But, similar to women and children held in detention on Nauru, it is about the disposability of “strangers” (Ahmed 2000) who are unwanted by the nation state, and thus deemed unworthy of protection. The good victim defines the privileged subject of legal assistance and excludes others as unworthy of help (Merry 2003). While sanctions for those perpetrating violence might differ depending on their conferred privilege or subordinated status at the intersections of gender, class, race, and nation.

Conclusion

Applying Sally Merry’s concept of a ‘rights consciousness’, this chapter has problematised a victim’s rights approach to SV and consent. Tensions for refugee and migrant women might be considered as lying in ‘harmful traditional practices’, such as arranged marriage, that promote rigid gendered norms. However, they also lie in mainstream systems and institutions meant to protect.

Merry (2003, 347) says ‘an individual’s willingness to take on rights depends on her experience trying to assert them’. Accessing services and legal help has a profound effect on a person’s subjectivity; the very act of calling a service, walking into a police station, filling out forms, or charging their partner with a crime, is critical to how victim/survivors understand and take up their rights. Women notice when police laugh at them, or make sexist remarks, they can sense if social workers or health workers deem them deserving or underserving of help, in some cases, this is made quite obvious to them. Women are profoundly effected by their experiences going through court for GV offences. Rather than encouraging women to take up their rights, then, efforts should focus on how to ensure a rights approach is affirmed in responses to SV.

Collins and Bilge (2020) suggest that human rights can only be actualised by viewing the different protected categories in relation to one another. When considering SV and consent, we should be just as outraged by illegal labour laws, Australia’s treatment of asylum seekers, and the racism directed at refugee and migrant communities. Centring those most marginalised can reveal the generative potential of rights as existing outside of legal frameworks and discursive subjectivities defined by, or made by, laws and rights discourse. Conceptualising gendered violence interventions differently thus might involve looking beyond legal solutions and investing in community responses that address problematic gendered norms underlying all forms of violence.

Notes

  1. 1.

    This was a qualitative study and used semi-structured interviews as method. Ethics approval was granted by the University of Queensland’s HASS LNR Committee—2022/HE000098. Consent was obtained from all participants, who were given relevant information related to participation, withdrawal, use and storage of data, and confidentiality prior to interviews.

    The research questions sought to understand:

    How do women from refugee and migrant backgrounds conceptualise the affirmative consent campaign in Australia?

    What do refugee and migrant women view as the limits, or the possibilities, of the affirmative consent campaign?

    What are the experiences of refugee and migrant women on being included or excluded from campaigns addressing gender violence in Australia.

    Purposive and snowball sampling were used to recruit participants. Organisations in Southeast Queensland, Sydney, and Melbourne were asked for permissions to contact their staff as potential participants. Organisations included migrant specific women’s services, refugee resettlement organisations, or mainstream organisations (domestic, family, and SV specific) who have refugee/migrant programs. Community organisations and identified leaders representing ethnic communities in Australia were also contacted. Those who chose to participate were asked to pass on information about the project to potential participants who could contact the researcher directly to organise an interview. Most of the participants were from Southeast Queensland, 4 from Victoria.

    20 semi-structured interviews were conducted. One was removed as it was discovered during the interview this participant did not identify as having a refugee and migrant background, but rather as having extensive history working with refugee and migrant women.

    Participants by country*

    Pathway to Australia.

    Type of work

    Work experience

    Degree qualifications/relevant experience

    Middle East

    Lebanon = 1

    Iran = 1

    Syria = 1

    South Asia

    Pakistan = 2

    India = 1

    Asia

    Myanmar = 1

    Vietnam = 1

    Thailand = 1

    Bangladesh = 1

    Nepal = 1

    Europe

    Italy = 1

    Bosnia = 1

    Sth America

    Columbia = 1

    Argentina = 1

    Chile = 1

    Bolivia = 1

    Africa

    Sudan = 1

    Ethiopia = 1

    Refugee = 7

    Migrant = 8

    Second Gen = 3

    Third Gen or above = 1

    Refugee Resettlement = 4

    Migrant Women’s Service = 8

    Refugee and/or Migrant program in a mainstream organisation:

    Domestic Family Violence = 2

    Sexual Assault = 1

    Other = 1

    Voluntary/Self-Funded Organisation = 2

    Community Leader (not working in above) = 1

    1–3 years = 6

    4–5 years = 2

    5–10 years = 4

    10–15 years = 6

    15–20 years = 0

     > 20 years = 1

    Bachelor = 10

    Masters = 2

    PhD = 3

    No Qual = 4

    Churchill Fellow = 1

    Policy or Taskforce Experience (Australia) = 5

    International Experience = 3

    1. *Participants are referred to by region only in the findings to protect confidentiality.

    The interviews were flexible and allowed for conversation to develop. Interviews followed a guide that considered: (1) How participants define their relationship to the mainstream anti-violence movement in Australia; (2) Differences or similarities in how refugee and migrant women conceptualise affirmative consent compared to mainstream campaigns; (3) How participants view affirmative consent as playing out in the ‘real world’; (4) Alternatives to mainstream campaigns that might address SV and consent; and (5) The experiences of interview participants in GV consultation or policy-making processes.

    Thematic analysis (open/axial coding) (Braun and Clarke 2006; Bryant and Charmaz 2007) was used to interpret the data. Identifying a central category that centred on women’s rights, the findings presented in this chapter examine 3 themes: (1) Marriage is Consent, (2) Loyalty to Men, and (3) Experiences with ‘Justice’.