Article

Sumak Kawsay, coloniality

and the criminalisation
of violence against
women in Ecuador

Feminist Theory
2016, Vol. 17(2) 141156
! The Author(s) 2016
Reprints and permissions:
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/1464700116645324
fty.sagepub.com

Silvana Tapia Tapia

University of Kent, UK

Abstract
This article asks if the incorporation of Sumak Kawsay, a concept from Andean philosophy, into the Constitution of Ecuador, has impacted the legal regulation of violence
against women. It examines the trajectory of penal reform in the field of domestic
violence and suggests that the decolonial shift in the Constitution has failed to significantly disrupt the dominant framework of penality in which gender violence regulation
is inscribed. At the same time, feminist demands have been reframed through the
formations of criminal law and the dominant political discourse, resulting in provisions
that reproduce a positivistic logic and a family protection rationality, with problematic
consequences for womens access to justice on the ground. If securing success in legal
reform entails translating emancipatory demands into established and unchallenged
penal paradigms, the potential of decolonial notions is overshadowed by the language,
formalities and underlying assumptions of criminal law.
Keywords
Coloniality, criminal law, Ecuador, Sumak Kawsay, violence against women

Introduction
In 2008, Ecuador incorporated some concepts from indigenous Andean
philosophies into its new Constitution.1 This move has been regarded by many
as a vindication of historically marginalised peoples through the adoption of their
worldview and forms of expression (Davalos, 2008; Acosta, 2011). A plurinational
and intercultural state was proclaimed, Sumak Kawsay (Buen Vivir, living well) was
posited as a guiding principle of the social order and Pachamama (Mother Nature)
was endowed with legal rights. This breakthrough has come after a long history of

Corresponding author:
Silvana Tapia Tapia, Kent Law School, Eliot College, University of Kent, Canterbury, Kent CT2 7NS, UK.
Email: sct25@kent.ac.uk

Downloaded from fty.sagepub.com at FLACSO Parent on September 14, 2016

142

Feminist Theory 17(2)

struggle and resistance in the Ecuadorian indigenous movement, which had consolidated as an inuential political actor with the founding of the Confederation of
Indigenous Nationalities of Ecuador, an entity that gained international notoriety
in the 1990s when indigenous mobilisations paralysed the country, forcing the
government to negotiate around various issues. The movement has been a key
actor in crucial political processes such as the protests that toppled the governments in 1997 and 2000, amidst a deep economic crisis and corruption scandals. It
has thereby been considered the strongest and most consequential indigenous
movement in Latin America (Yashar, 2005).
The 2008 Constitution was forged under the presidency of Rafael Correa, a
young politician and academic elected in 2007, who then had no known links
with the traditional, discredited party system. He called for the end of the long
and sad neoliberal night (Correa, 2012) and positioned Ecuador as one of the pink
tide Latin American countries.2 Despite an initial convergence with actors who
had long resisted neoliberalism and globalisation, the relationship between the
regime and the social movements has become tense (Ram rez Gallegos, 2010).
Discrepancies have emerged from the indigenous movement, which opposes the
regimes extractivist activities amongst other policies, and also from the womens
movement, which has objected to ocialist approaches to gender and sexuality.
While some self-identied feminists have been appointed or elected to public oce
and generally support the regime, those outside state institutions, even if politically
aligned with the left, are critical of the governments stance as it often resonates
with the views of conservative sectors (Lind and Keating, 2013). In this context,
questions emerge regarding the limitations of a constitutional shift that has been
regarded as emancipatory. More specically, there are pending questions about the
promise of Sumak Kawsay in relation to gender politics. In the eld of legal
reform, the impact that the Constitution is having upon new laws is being interrogated: criminal policy is a relevant site in this respect, as a new penal code, which
criminalised gender violence, was enacted in 2014, revealing many of the paradoxes
and complexities of feminist agendas vis-a-vis the regimes programme.
This article focuses on violence against women (VAW), a topic that has occupied feminist campaigns in Ecuador for many years, especially concerning domestic
violence. I argue that the integration of Sumak Kawsay into the Constitution has
not translated into a disruption of the penal construction of women, that is, the
incorporation of decolonial notions has not ensured an interrogation of dominant
gender ideologies in criminal law. I draw on an analysis of documents such as laws,
parliamentary debates and feminist writings; parts of my argument are based on
insights from eldwork carried out in Ecuador in 2015 in the context of a broader
research project. Fieldwork comprised one-hour semi-structured interviews with
twenty-ve participants, including six members of the National Assembly of
Ecuador, eight public servants at non-legislative oces, seven sta members of
non-governmental organisations and three independent professionals. All participants are self-identied feminists who were asked to comment on the processes
from which the new penal code emerged, the impact it is having on the

Downloaded from fty.sagepub.com at FLACSO Parent on September 14, 2016

Tapia Tapia

143

administration of justice and, more generally, the challenges and advantages that
resorting to criminal law entails for feminists. I also observed a public debate on
the new code which took place between judges that work at specialised courts for
women and the family and representatives of the National Assembly.
The experience of Ecuador as a site where decolonial notions have formally
entered the state legislation merits the attention of feminist critical scholarship.
Lessons can be learned in view of the problematic prevalence of penality as a
central frame to address gendered violence, which can in turn inform our understanding of the limitations and paradoxes that are involved in resorting to liberal
law and legal reform as strategic instruments in projects that pursue the decolonisation of gender.

Coloniality, law and gender

Coloniality broadly refers to the persistence of paradigms, norms and hierarchies
introduced through processes of colonisation and imposed upon the colonised,
thereby rejecting their knowledges and worldviews, and constructing deviant subjectivities that are marginalised and deemed less than human. The colonial paradigm systematically denies alternative ways of being, prevailing beyond direct
imperial rule. From this perspective, authors have addressed issues such as the
coloniality of knowledge, involving the hegemony of positivist Western science
and its epistemic orthodoxy (e.g. De Sousa Santos, 2007); the coloniality of
power in reference to the racialised production of Europes modernity and the
expansion of global capitalism (Quijano, 2000); or the coloniality of gender to
expose the subjectication of peoples through the introduction of racialised and
gendered norms (Stoler, 1995; Lugones, 2010). These debates generally discuss
neoliberal globalisation as a contemporary expression of coloniality, arguing that
imperialism predominates as a global system of power.
From these viewpoints, the law can be framed as a colonial technology not only
because it legitimised imperial territorial expansion, Christianisation and the overpowering of indigenous societies (Arias and Marrero-Fente, 2014), but also
because it continues to x norms and make claims to truth based on principles
and procedures that privilege those experiences of the world that can be framed
through legal discourse. In this way, penality, understood as the whole of the penal
complex, including legal provisions, procedural rules and sanctions (Foucault,
1977; Howe, 1994), builds upon the universalisation of imprisonment as justice,
thus marginalising alternative approaches such as that of Andean indigenous legal
systems, in which incarceration is not generally a central mechanism (Avila, 2012).
The pivotal role that criminal law has played amongst mainstream feminist
strategies to counteract VAW has prompted discussions addressing the re-victimising eects of the penal process (e.g. Snider, 1994) and the political implications of
carceral feminism, which some scholars have linked to neoliberal transnational
governance and international human rights discourses (Halley, 2008; Bernstein,
2012). At the same time, the colonial elements in said discourses have been brought

Downloaded from fty.sagepub.com at FLACSO Parent on September 14, 2016

144

Feminist Theory 17(2)

forward by feminists who, drawing from the work of thinkers such as Mohanty
(1991) and Spivak (1988) on the construction of third-world women, have shown
that international human rights law often arms representations of non-white
women as defenceless victims of non-white men (e.g. Kapur, 2002).
Faced with these scenarios, a constitutional rejection of all forms of domination
and colonialism (Constitucion de la Republica, 2008: Preamble) emerges as a
promise that could facilitate the dismantling of dominant constructs and in this
way challenge narrow representations of justice and gender. Several commentators
have framed Sumak Kawsay as a post-neoliberal alternative to development
(Gudynas and Acosta, 2011; Radclie, 2012), but its constitutional rendition as
a guiding principle that traverses the notions of rights and wellbeing also supposes
its subsequent integration into institutions, policy and legislation, widely.
Sumak Kawsay broadly refers to life in harmony with nature and in balance
with the cosmos, that is, life in fullness (Macas, 2010).3 In the Andean cosmovision,
according to some authors, the totality of the cosmos is animated by a single life
force, while the basic principles that govern it are opposition and complementarity
(Mae, 2010). Reality is formed by interconnected, inseparable beings, thus
Andean ontology can be considered a form of robust monism (Trownsell, 2013).
Opposites do not exclude or contradict one another, rather, their interrelation
results in the production of a third potentiality which is always embraced and
included (Medina, 2011: 42). As a result, relationality, and not the individualised
being, is the fundamental category of Andean cosmovision. It follows that technologies like the prison, based on isolation and exclusion, would be considered a
destiny worse than death, since vital energy is not individual but collective and all
encompassing.
While duality and complementarity are not unproblematic for a feminist politics
of emancipation,4 some authors suggest that there are elements of Andean cosmovision that can challenge rigid gender representations. Conceptually, Mar a
Lugones resorts to the image of Chacha-warmi (man-woman), the father/mother
of all, characterised as a parallel unity of complementary opposites (2009: 154)
where the feminine and the masculine are always moving and producing balance,
without dichotomy or hierarchy between them. To Dean (2001), Andean gender is
indeed based on the opposition between feminine and masculine, but the complement is so vital that contrast becomes relative, situational and negotiable, allowing
for diverse expressions of gender to emerge and be embraced. Gargallo in turn
considers that coloniality has imposed a sexual hierarchy upon complementarity
(2014: 81); that is, outside the ontology of interconnectedness and applied to
colonial binaries, complementarity can result in xed, hierarchical gender representations. Decolonising gender in the light of these elaborations would then entail
a continuous negotiation and reconguration of the roles and identities that have
become narrow and rigid through colonial and postcolonial power arrangements.
The resultant challenge in the legal eld is to recognise this diversity through a
technology that is essentially designed to x meanings and set stable parameters, as
is the law.

Downloaded from fty.sagepub.com at FLACSO Parent on September 14, 2016

Tapia Tapia

145

Using the law to challenge the law? Decolonisation and

liberal legal frameworks
Having outlined the implications of Sumak Kawsay for penality and gender, I now
consider the questions that emerge when such a concept is integrated into the state
law. Without disregarding the syncretism and diversity of contemporary Andean
thought (Estermann, 1998), nor the plurality of all legal orders (Fitzpatrick, 1984),
the incorporation of a decolonial concept into pre-existing legislation involves an
encounter of perspectives that may clash. To De Sousa Santos, despite the enormous diculties posited by the encounter of Sumak Kawsay and Occidental paradigms in what he calls a civilizatory debate, the dialogue between worldviews is
key in the transition from colonialism to sovereignty understood as citizens selfdetermination. He stands up for an ecology of knowledges, that is, a combination
of Western and Amerindian worldviews that rescues the wealth of both (De Sousa
Santos, 2010a). In the same vein, Avila (2013) has armed that Andean constitutionalism inaugurates a postliberal era by incorporating ancestral institutions that
are absent from Western legal traditions.
Nevertheless, critics have noted that discourses of inclusion could be based
on premises of asymmetry and domination (Estermann, 2014: 355), which
would hinder an intercultural dialogue and potentially reproduce coloniality.
For instance, Breny Mendoza (2012) has provocatively asked whether the
social movements involved in the constituent process could possibly have
done away with the dominant state form but instead decided to keep it, thinking that all that was needed was a new law. In eect, Latin American
constitutions are inscribed in the traditions of liberalism, which reect
Western-style political thought. Liberal constructions of rights are broadly
based on notions such as individuality and autonomy, which may clash with
Andean relationality: criminal law, for instance, focuses on individual responsibility and incarceration rather than the community-based reparations that are
more frequent in indigenous practices. Decolonial notions would not disrupt the
dominant body of law if they were immersed in processes of unequal legal
integration (Gargarella, 20102011: 1538) or inferior recognition (Walsh,
2009: 173), which can occur when the ancestral is reinterpreted to adapt it to
available legal categories. Moreover, integration could result in a symbolic
appropriation (Merry, 1988: 882) through which state law is legitimised by
appealing to the re-institution of the traditional.
Integration could thus result in an unintended validation and bolstering of the
dominant paradigm. In the eld of criminal law, for example, it has been pointed
out that Pachamama, when absorbed by the legal logic, has given rise to a discourse that rather than treating nature as a subject of rights frames it as a legal
good, triggering an almost immediate response from penal law through the creation of environmental crimes (Zaaroni, 2011). An interrogation of the responsiveness of liberal law to decolonial strategies or, in De Sousa Santos words,
asking if we can develop a non-hegemonic concept of legality (2010b: 64), is
thus necessary. While an answer to this question cannot be denitive or a priori,

Downloaded from fty.sagepub.com at FLACSO Parent on September 14, 2016

146

Feminist Theory 17(2)

it is possible to scrutinise concrete events of legal reform and examine if and how
they have been impacted by decolonial discourses.
What follows in an examination of the trajectory of legal reform regarding
VAW in Ecuador. My aim is to understand its underlying rationalities and the
consequences of its implementation, which will in turn enable an assessment of the
latest process of penal reform vis-a`-vis the decolonial potential of the Constitution.

Neoliberalism and the turn to criminal justice

Protecting women from violence in the home is not a recent endeavour in
Ecuadorian and Latin American public policy. Domesticity and the family have
long been important sites of intervention, largely due to their centrality in postcolonial nation-making projects (Dore, 2000). These deeply racialised and gendered
processes have tended to reproduce colonialist hierarchies and construct the family
as a space where national identity and citizenship are built, often around ideals of
Europeanness (Radclie and Westwood, 1996; Molyneux, 2000; Clark, 2001).
Concerns with protecting the family resulted in policies designed to limit patriarchal power in order to protect women and children from excessive violence (Guy,
2000; Rodr guez, 2000; Varley, 2000), but these coexisted with laws that attempted
to normalise womens role as reproducers, for instance, by regulating marriage or
penalising adultery, abortion, prostitution, etc. Such norms have been aligned with
the discourse of inuential institutions like the Catholic Church, which has supported family protection policies and gradually come to endorse equality between
men and women, so long as it is rooted in the proper roles of each of the sexes
(Htun, 2003: 31). A framing of VAW through family protection discourses that x
gender roles continues to inform legal interventions in domesticity, as I will show.
Feminist perspectives on VAW were introduced in Ecuador with the emergence
of organised womens movements, which is traceable back to the 1970s, when
rejection of the military dictatorship led to increased popular mobilisation
(UNESCO, 1984). The reinstatement of a democratic government in 1979 resulted
in more spaces for the participation of civil society, which coincided with the dissemination of international discussions regarding the incorporation of women in
development. These framings posited VAW as an impediment to womens economic inclusion; at the same time, the neoliberal structural adjustment programmes implemented through the 1980s and 1990s impacted on the
impoverishment of women and the roll-back of social rights in the country
(Lind, 2005; Bedford, 2009). Penalisation, as a form of feminist engagement with
VAW, consolidated within these contradictory contexts, through the work of feminist issue networks (Htun, 2003) formed mainly by professional middle- and
upper-class women who consulted and collaborated in public policy design, often
through non-governmental organisations and informed by processes developed at
the international level.
The positioning of VAW as a question of human rights, particularly via the
United Nations conferences on women, gradually facilitated a shift from

Downloaded from fty.sagepub.com at FLACSO Parent on September 14, 2016

Tapia Tapia

147

welfare-oriented discourses to strategies that focused more on criminal justice and

legal reform (Joachim, 2007); the human rights discourse has been identied as a
conduit for the transnationalisation of carceral politics through feminist campaigns (Bernstein, 2012). In Latin America, the 1994 Inter-American Convention
on the Prevention, Punishment and Eradication of Violence Against Women was a
key leverage to press national governments to penalise VAW, resulting in a boom
of legal reform in the region.5 In Ecuador, the 1980s had seen feminists denouncing
discriminatory penal laws, obtaining, for instance, the repeal of an article that
excused men who killed female relatives when they engaged in illegitimate
carnal acts (Codigo Penal, 1938). Conversely, the 1990s brought a shift toward
the active proposal of new laws drafted by feminists: in 1994 a Ministerial
Agreement ordained the allocation of police commissariats to deal exclusively
with domestic violence, and in 1995 Ecuadors rst Law against violence toward
women and the family (Act 103) passed.
In Act 103, family protection appears to have been re-inscribed as a primary
rationale of legal intervention in VAW. As one activist who participated in the
process told me, the draft bill was originally entitled Law against violence toward
women, whereas the expression and the family was added by members of congress
during the negotiations, allegedly because it would then be better suited to be
accepted by the male-dominated legislature. The recorded parliamentary debates
also expound dominant familial ideologies: for instance, the denition of nuclear
family excluded unmarried lovers and ex-lovers, which were considered potential
aggressors but not family members, revealing a preoccupation with limiting denitions of the family and focusing on ties of marriage and kinship. Likewise, the
expression sexual freedom, used to dene protected rights in sexual violence, was
actively disputed as a notion that could authorise womens sexual promiscuity
(Santiago Bucaram, in Congreso Nacional del Ecuador, 1995). Ultimately, sexual
freedom of women was replaced by sexual freedom of the family, showing that
feminist proposals were often accepted after being translated into a pre-authorised
language, and only as long as they did not pose great threats to existing norms.
Act 103 was overall a hybrid law that combined the use of civil procedures in
cases of psychological violence with the use of existing penal procedures designed
to judge minor physical injuries (misdemeanours); more severe crimes such as
major injuries, rape and murder continued to be ordinary oences within the general penal code. Importantly, Act 103 prescribed protection measures for women
which could be issued by the authority a specialised commissioner immediately
after a complaint was led, meaning that the claimants allegations were sucient
to grant a protection order. The mechanism responded to feminist contentions that
violence in intimate relationships involves continuous exposure to abuse, that
women remain at risk after the attacks have ceased and that abuse is usually
hidden and therefore dicult to prove. In eect, preventive restraining orders
were the measure that women requested most (Tamayo, 1998).
From the perspective of activists and the sta that worked at the commissariats,
however, the law was not eective, since only between 4 per cent and 11 per cent of

Downloaded from fty.sagepub.com at FLACSO Parent on September 14, 2016

148

Feminist Theory 17(2)

cases ended with a sentence (Jacome Villalba, 2003; Jubb, 2008). Since women
would frequently abandon the process after the protection measures were issued,
it was not possible to empirically assess the eect of sanctions upon violence rates.
Paradoxically, the increasing amounts of complaints led at the commissariats
nourished the perception that penalties were insucient to deter the aggressors.
As noted by a former member of sta at a commissariat, conversations about the
need for harsher punishment and the recognition of domestic violence not just as a
misdemeanour, but as a criminal oence, started to be held. Though the abandonment of lawsuits could be interpreted as sign that imprisonment was not a primary
motivation for women who reported violence, it had become nearly impossible to
respond to VAW outside of the penal eld.
Through the 1990s, womens organisations had further opportunities to propose
legislation. In 1998 a new Constitution incorporated several demands of the
womens movement, including the recognition of the right to personal integrity
and to a life free from violence. Conservative politicians were not troubled by
this proposal, though they did object to conceptualisations that could threaten
family values: centre-right assembly members such as Marcelo Santos, who had
as Minister of Government approved the creation of the domestic violence commissariats, expressed concerns that broadening the denition of the family would
promote same-sex unions (Valladares, 2003). This and the above examples show
that discourses opposing VAW were not incompatible with conservative perspectives regarding other aspects of gender politics. Feminist approaches during the
years of neoliberalism were shaped through discourses that pushed for the protection of womens rights through increasing penalisation, while conservative familial
ideologies remained an important rationality in the legal construction of women.

Sumak Kawsay, penality and gender: Unfulfilled promises

A number of issues could have been disrupted by the 2008 Constitution and its
adoption of Sumak Kawsay. As outlined above, Andean tenets can challenge penalisation as the preferred state response to violence, as well as narrow constructions
of gender that subordinate women. Despite this potential, an examination of the
Constitution shows that many of its mandates are still built upon an underlying
conation between penalisation and the protection of rights (e.g. Article 80) whereby
Sumak Kawsay does not appear to have been fully integrated. Although the coercive power of the state is limited by guarantees designed to ensure that the rights
of defendants and victims are respected (Articles 76 and 77), these developments
originate in previously established liberal principles. In relation to VAW, the right
to personal integrity and to a life free of violence is consecrated as part of the right
to freedom (Article 66 N.3); in this regard provisions do not dier greatly from the
previous constitution, although there is an important addition: a specialised, expeditious legal process is prescribed for oences committed against vulnerable groups,
including cases of family violence, sexual violence and hate crimes (Article 81).
Again, this layout is not directly related to the shifts introduced by Sumak Kawsay,

Downloaded from fty.sagepub.com at FLACSO Parent on September 14, 2016

Tapia Tapia

149

but rather to the human rights discourses already consolidated at the international
level and established in the Constitution of 1998. Not much about these provisions
would be jeopardised in the absence of the Andean concept. Nonetheless, the
proclamation of Sumak Kawsay as a transversal principle in the Constitution
means that secondary legislation in all areas should still be expected to reect
the decolonial shift. Was this the case of VAW in the new Penal Code?
The run up to the enactment of the code was a complex and contested process.
Womens organisations had been suspicious that the new constitution could entail
the loss of what they had achieved in the 1990s, and as a consequence, the main
agreement reached in a pre-constituent meeting that brought womens collectives
together was to defend the advancements of 1998 (Palacios Jaramillo, 2008).
Likewise, when it was announced that a new Penal Code was being drafted and
some feminist activists and assembly members proposed to criminalise domestic
violence, womens organisations that had long worked with survivors anticipated
certain problems (outlined below) and requested that Act 103 remained in force,
which was ultimately not the case.
The new code shows a tendency toward the expansion of penality, as it
aggravates the sanctions for various existing crimes and creates around seventy
new criminal oences, including the infractions categorised as violence against
women and the nuclear family, which comprise physical and psychological
violence. An early draft had referred to these oences simply as intra-familial
violence (Asamblea Nacional del Ecuador, 2012); women were introduced in
the denomination afterwards, at the insistence of feminist collectives. Once
again, a conation between issues that aect women and those pertaining to the
family was revealed.
Under Act 103, psychological violence against women had been treated as a
special form of misdemeanour which was subject to a rapid civil procedure. In the
new code, physical injuries continue to be framed as crimes or misdemeanours
depending on their severity, but psychological violence was fully criminalised.
This move required quantication of the damages caused by the aggression: the
code establishes a scale to determine the time of imprisonment depending on the
severity of the mental health impairment provoked as result of the abuse. Damages,
which are perhaps simpler to measure when it comes to bodily injuries, are complex
to assess in cases of psychological violence. During eldwork I heard psychologists
discuss the diculties of establishing an exact recovery time in such cases; moreover, it is complicated to demonstrate that emotional damage which, I was told,
needs to be very serious to prevent a person from working is unequivocally
connected to a particular event of abuse.
Such inscription of psychological violence in the punitive logic of the penal code
rearms a positivistic form of knowledge that privileges measurability and scientic certainty. This aects the credibility of womens testimonies, which under the
former law were sucient to grant protection measures. It also sidelines minor
forms of daily abuse such as hostility, insults, yelling, threats, etc, which may not be
serious enough to cause measurable harm, but that can certainly cause distress or

Downloaded from fty.sagepub.com at FLACSO Parent on September 14, 2016

150

Feminist Theory 17(2)

may signal the likely escalation of violence, thus requiring pre-emptive measures.
Furthermore, physical injuries that do not leave bodily marks were possible to
tackle under Act 103 as forms of emotional abuse, but the new provisions preclude
this altogether.
Crucially, the constitutional mandate establishing a specialised procedure for
VAW has been at best only partially fullled: while misdemeanours, which now
correspond to minor physical injury only, are judged through a specialised process
at dedicated courts, psychological violence as an ordinary criminal oence is prosecuted under the general criminal process which, besides being long and cumbersome, undermines one of the strengths of Act 103: the immediate protection
measures that were issued following a complaint are now more dicult to
obtain; they are to be requested by a public prosecutor and issued by a judge
only when evidence is deemed sucient to merit the judicial order, delaying or
even obstructing womens access to legal protection.
As much can be said about an article that mandates judges to consider the
aggressors certicates of good repute and professional competence when judging
domestic violence. While womens organisations opposed this, assembly members
have justied it as coherent with the principles of the penal process such as that of
pertinence, which states that evidence should refer directly or indirectly to the facts
and circumstances concerning the commission of the infraction (Godoy, 2014).
This may be attuned to penal principles, but it overlooks the barriers that
women confront when they approach the courts, as the acceptance of these certicates again questions their credibility. Moreover, the provision reinforces a
representation of masculinity based on the model of the responsible, breadwinning
family man. An attest of good repute is unlikely to be obtained by unemployed,
impoverished or otherwise marginalised men, who, in Ecuador, are often nonwhite. While it is unclear how this article came to be included, conservative agendas
certainly mobilised in the run up to the codes approval.
Perhaps the most evident manifestation of such conservative forces was the
debate over abortion, which again revealed a lingering construction of women
primarily as reproducers. The womens movement demanded that abortion be
legalised not only when pregnancy results from the rape of a mentally disabled
woman that is, eugenic abortion but in all cases of rape. Feminist assembly
member Paola Pabon presented the corresponding motion following agreements
with womens collectives, in a climate that promised support from fellow assembly
members. However, President Correa, who as a Catholic has publicly declared his
opposition to any changes in abortion legislation, soon announced disciplinary
measures for Pabon and some assembly women who supported her, deeming
them disloyal to the coalition and stating that he would resign if the motion was
approved (El Comercio, 2013). The proposal was withdrawn rst thing the next
morning when the debate continued. Pabon then addressed the President and said:
[. . .] we are the ones who defend the rights of women, we defend equal marriage,
we believe in the rights of nature [. . .]. Comrade President, with the immense aection that we have for you, we tell you that this time you are mistaken. But for the

Downloaded from fty.sagepub.com at FLACSO Parent on September 14, 2016

Tapia Tapia

151

unity of this bloc [. . .] I withdraw the motion in order not to show a rupture
(Asamblea Nacional del Ecuador, 2013: 3). This quotation is a compelling example
of how decolonial aspirations that disrupt gender norms and dominant conceptualisations of rights were subordinated to the formations of criminal law and familial ideologies that reproduce coloniality. In her short speech, Pabon said a lot: it
was no coincidence that she mentioned the rights of Mother Nature and same-sex
marriage when speaking about abortion and womens rights. She positioned herself
and other assembly women as supporters of a project that promised broader possibilities of negotiation for women and diverse people. But the unity of the bloc,
that is, obedience to party discipline and its leadership, was prioritised. A legislative
process that led to the penalisation of gender violence also silenced the voices of
many women and unmasked the elements of coloniality that the penal legislation
still bears. It also revealed a failure to generate dialogue and debates that could
have deployed the ecology of knowledges and the non-hegemonic legality that De
Sousa Santos and others have envisioned. In a context of political imbalance,
penality, familial ideologies and other dominant paradigms overshadowed the
decolonial potential of the constitutional promise.

Conclusion
Despite the incorporation of Sumak Kawsay into the Ecuadorian Constitution as
an expression of a decolonial promise, the legal treatment of VAW remains limited
by manifestations of coloniality that are aligned with penality. While feminist use
of criminal law as a central instrument to counteract VAW has been associated
with a period widely identied as neoliberal, the decolonial turn has not caused a
disruption of existing penal discourses in post-neoliberal Ecuador, and nor has it
translated into broader possibilities for women to access justice. Penality still
widely informs the way in which rights are understood and protected, and the
prevalence of these formations, together with the continuity of conservative discourses regarding gender norms and womens role in the family, have largely
determined a legal construction of VAW that dismisses the lived realities of
those who attempt to access justice, limiting their options to the narrow possibilities oered by the penal system, and precluding alternative approaches to justice
from being developed.
Moreover, the trajectory of legal reform on VAW in Ecuador shows that from
the hybrid treatment awarded to domestic violence in Act 103, to its complete
penalisation in the 2014 Penal Code, penality has intensied in post-neoliberal
Ecuador. This remains a paradox that expounds the limitations of the decolonial
shift in matters of gender justice and criminal policy, exposing the fact that decolonial discourses and anti-neoliberal programmes on their own do not necessarily
result in benecial changes regarding the politics of gender. Additionally, the
repeated inscription of family protection discourses in VAW legislation suggests
that certain feminist campaigns have had more success than others inasmuch as
they have converged with dominant ideologies through a legal framework

Downloaded from fty.sagepub.com at FLACSO Parent on September 14, 2016

152

Feminist Theory 17(2)

that continues to reproduce coloniality. If womens subordination is only intelligible through the language of family protection, which is also a central rationality
that prevents other crucial projects, such as the decriminalisation of abortion, from
being implemented, the success of the reform has indeed come at a very high cost.
The Penal Code reveals the paradoxes confronted by feminists in contemporary
Ecuador: the bittersweet success of having VAW recognised as a criminal oence
coexists with the diculties that this very recognition brings to many women. This
invites us to rethink womens rights and VAW outside the positivistic, punishmentcentred lens of penality. Sumak Kawsay and the alternatives oered by Andean
perspectives on gender and justice remain underexplored within these discussions
despite their constitutional incorporation. At the same time, an extensive, more
inclusive and deeper debate of gendered violence in relation to Sumak Kawsay and
criminal justice still has to take place.
Acknowledgements
I would like to thank Kate Bedford, Nayeli Urquiza Haas, Maria Drakopoulou and Sinead
Ring for their generous support and comments on earlier versions of this article. I have also
benetted from the guidance oered by the editors of this Special Issue and the insightful
and thorough feedback provided by two anonymous reviewers.

Notes
1. There are various renditions and interpretations of Andean thought whose discussion
surpasses the scope of this article. This piece refers to Andean concepts as they appear in
the Constitution and the texts of contemporary commentators.
2. The governments of Argentina, Bolivia, Brazil, Ecuador, Nicaragua, Venezuela and
Uruguay have been referred to in the media as pink tide, meaning that they embrace
moderate socialist stances are not quite (communist) red.
3. The concept has its roots in pre-Columbian traditions but its contemporary rendition dates
back to the 1970s and 1980s (Ariruma Kowii in Plan V, 2014), and was developed mainly by
indigenous intellectuals who draw from oral histories, the chronicles of authors like Guaman
Poma de Ayala and Pachacuti Yamqui Salcamaygua and archaeological evidence.
4. Burman (2011) discusses the gaps between complementarity as an ideal and the sociopolitical practices that subordinate Andean women. She shows that Bolivian indigenous
women sometimes represent machismo as a colonial introduction, but notes that precolonial Andean society was unlikely non-hierarchical in regards to gender. Gargallo
also notes that some women from indigenous communities acknowledge an ancestral
patriarchy but distinguish it from the one introduced through colonisation. She refers to
this intersection as the patriarchal junction (2014: 76).
5. Laws related to VAW appeared for instance in Argentina, 1994; Bolivia: 1995; Chile,
1995; Colombia: 1996; Ecuador, 1995; Peru: 1993; Venezuela, 1998 (Almeras et al., 2004).

References
Acosta, Alberto (2011) Solo Imaginando Otros Mundos se Cambiara Este. Reflexiones
Sobre el Buen Vivir. In: Invonne Farah and Luciano Vasapollo (eds) Vivir Bien: paradigma no Capitalista? La Paz: CIDES-UMSA, pp. 189208.

Downloaded from fty.sagepub.com at FLACSO Parent on September 14, 2016

Tapia Tapia

153

Almeras, Diane, Rosa Bravo Vivian Milosavljevic, et al. (2004) Violence Against Women in
Couples: Latin America and the Caribbean. A Proposal for Measuring Its Incidence and
Trends. Santiago: ECLAC.
Arias, Santa and Raul Marrero-Fente (eds) (2014) Coloniality, Religion, and the Law in the
Early Iberian World. Nashville, TN: Vanderbilt University Press.
Asamblea Nacional del Ecuador (2012) Proyecto de Codigo Organico Integral Penal. Primer Debate.
Asamblea Nacional del Ecuador (2013) Acta 257-B. 11 October.
Avila, Ramiro (2012) Debe Aprender el Derecho Penal Estatal de la Justicia Ind gena?.
In: Boaventura De Sousa Santos and Agust n Grijalva (eds) Justicia Indgena,
Plurinacionalidad e Interculturalidad en Ecuador. La Paz: Abya Yala, pp. 279305.
Avila, Ramiro (2013) De la Utop a de Montecristi a la Distop a de la Revolucion
Ciudadana. In: Juan Cuvi Decio Machado, Atawallpa Oviedo, et al. (eds) El
Corresmo Al Desnudo. Quito: Montecristi Vive, pp. 7081.
Bedford, Kate (2009) Developing Partnerships: Gender, Sexuality, and the Reformed World
Bank. Minneapolis, MN and London: University of Minnesota Press.
Bernstein, Elizabeth (2012) Carceral Politics as Gender Justice? The Traffic in Women
and Neoliberal Circuits of Crime, Sex, and Rights. Theory and Society, 41(3): 233259.
Burman, Anders (2011) Chachawarmi: Silence and Rival Voices on Decolonisation and
Gender Politics in Andean Bolivia. Journal of Latin American Studies, 43(1): 6591.
Clark, Kim (2001) Genero, Raza y Nacion: La Proteccion a la Infancia en el Ecuador (1910
1945). In: Gioconda Herrera (ed.) Antologa Genero. Quito: FLACSO Ecuador, pp. 197226.
Codigo Penal (1938) Publicacion Oficial.
Congreso Nacional del Ecuador (1995) Acta no. siete (7). 13 November.
Constitucion de la Republica (2008) Registro Oficial 449.
Correa, Rafael (2012) Conferencia Magistral del Economista Rafael Correa Delgado en la
Universidad de Buenos Aires. Available at: http://www.presidencia.gob.ec/wp-content/
uploads/downloads/2012/10/031210_Conferencia-Magistral-dictada-por-el-Presidenteen-la-UBA.pdf (accessed 27 August 2015).
Davalos, Pablo (2008) El Sumak Kawsay (Buen Vivir) y las Cesuras del Desarrollo.
America Latina en Movimiento. Available at: http://www.alainet.org/es/active/23920
(accessed 29 September 2014).
De Sousa Santos, Boaventura (ed.) (2007) Another Knowledge is Possible: Beyond Northern
Epistemologies. London and New York: Verso.
De Sousa Santos, Boaventura (2010a) Hablamos del Socialismo del Buen Vivir. America
Latina en Movimiento, 452: 4.
De Sousa Santos, Boaventura (2010b) Para una Democracia de Alta Intensidad. Ecuador
Debate, 80: 6376.
Dean, Carolyn (2001) Andean Androgyny and the Making of Men. In: Cecelia Klein (ed.)
Gender in Pre-Hispanic America. Washington, DC: Dumbarton Oaks Research Library
and Collection, pp. 143182.
Dore, Elizabeth (2000) One Step Forward, Two Steps Back: Gender and the State in the
Long Nineteenth Century. In: Elizabeth Dore and Maxine Molyneux (eds) Hidden
Histories of Gender and the State in Latin America. Durham, NC and London: Duke
University Press, pp. 332.
El Comercio (2013) Rafael Correa Amenaza con Revocacion a Congresistas a Favor del
Aborto. Available at: http://elcomercio.pe/mundo/actualidad/rafael-correa-amenazarevocacion-congresistas-favor-aborto-noticia-1646954 (accessed 19 October 2014).

Downloaded from fty.sagepub.com at FLACSO Parent on September 14, 2016

154

Feminist Theory 17(2)

Estermann, Josef (1998) Filosofa Andina: Estudio Intercultural de la Sabidura Autoctona

Andina. Quito: Abya-Yala.
Estermann, Josef (2014) Colonialidad, Descolonizacion e Interculturalidad. Apuntes desde
la Filosof a Intercultural. Polis, Revista Latinoamericana, 13(38): 347368.
Fitzpatrick, Peter (1984) Law and Societies. Osgoode Hall Law Journal, 22(1): 115138.
Foucault, Michel (1977) Discipline and Punish: The Birth of the Prison. London: Allen Lane.
Gargallo, Francesca (2014) Feminismos desde Abya Yala. Ideas y Proposiciones de las Mujeres
de 607 Pueblos en Nuestra America. Ciudad de Mexico: Editorial Corte y Confeccion.
Gargarella, Roberto (20102011) Grafting Social Rights onto Hostile Constitutions. Texas
Law Review, 89: 15371556.
Godoy, Gina (2014) Reflexiones sobre Evaluacion del COIP al Primer Mes de Implementacion
Realizado Por Anunziatta Valdez. Available at: http://www.scribd.com/doc/242371680/
Respuesta-de-Gina-Godoy-a-evaluacion-COIP-pdf (accessed 17 April 2015).
Gudynas, Eduardo and Alberto Acosta (2011) El Buen Vivir o la Disolucion de la Idea del
Progreso. In: Mariano Rojas (ed.) La Medicion Del Progreso y Del Bienestar. Propuestas
Desde America Latina. Mexico DF: Foro Consultivo, Cient fico y Tecnologico,
pp. 103110.
Guy, Donna (2000) Parents Before the Tribunals. The Legal Construction of Patriarchy in
Argentina. In: Elizabeth Dore and Maxine Molyneux (eds) Hidden Histories of Gender
and the State in Latin America. Durham, NC and London: Duke University Press,
pp. 172193.
Halley, Janet (2008) Rape at Rome: Feminist Interventions in the Criminalization of Sexrelated Violence in Positive International Criminal Law. Michigan Journal of
International Law, 30: 1123.
Howe, Adrian (1994) Punish and Critique. Towards a Feminist Analysis of Penality. London
and New York: Routledge.
Htun, Mala (2003) Sex and the State: Abortion, Divorce, and the Family Under Latin
American Dictatorships and Democracies. Cambridge: Cambridge University Press.
Jacome Villalba, Nelly (2003) Estudio Cultural de la Practica Jurdica en las Comisaras de la
Mujer y la Familia. Masters dissertation, FLACSO, Quito, Ecuador.
Joachim, Jutta (2007) Agenda Setting, the UN, and NGOs: Gender Violence and Reproductive
Rights. Washington, DC: Georgetown University Press.
Jubb, Nadine (2008) Mapeo Regional de las Comisaras de la Mujer en America Latina.
Quito: CEPLAES.
Kapur, Ratna (2002) The Tragedy of Victimization Rhetoric: Resurrecting the Native
Subject in International/Post-Colonial Feminist Legal Politics. Harvard Human Rights
Law Journal, 15: 128.
Lind, Amy (2005) Gendered Paradoxes. Womens Movements, State Restructuring and Global
Development in Ecuador. University Park, PA: Pennsylvania State University Press.
Lind, Amy and Christine Keating (2013) Navigating the Left Turn: Sexual Justice and the
Citizen Revolution in Ecuador. International Feminist Journal of Politics, 15(4): 515533.
Lugones, Maria (2009) Hacia una Lectura Decolonial de Chacha-Warmi. Reunion Anual
De Etnologa, II: 153.
Lugones, Maria (2010) Toward a Decolonial Feminism. Hypatia, 25(4): 742759.
Macas, Luis (2010) Sumak Kawsay: La Vida en Plenitud. America Latina En Movimiento,
452: 14. Available at: http://www.plataformabuenvivir.com/wp-content/uploads/2012/
07/MacasSumakKawsay2010.pdf (accessed 27 August 2015).

Downloaded from fty.sagepub.com at FLACSO Parent on September 14, 2016

Tapia Tapia

155

Maffie, James (2010) Pre-Columbian Philosophies. In: Susana Nuccetelli Ofelia Schutte
and Otavio Bueno (eds) A Companion to Latin American Philosophy. Oxford: WileyBlackwell, pp. 722.
Medina, Javier (2011) Acerca del Suma Qamana. In: Ivonne Farah and Luciano Vasapollo
(eds) Vivir Bien: Paradigma no Capitalista? La Paz: CIDES-UMSA, pp. 3964.
Mendoza, Breny (2012) Response to Julieta Lemaitre, Amy Lind, and Catherine Walsh.
Feminists@law, 2(1). Available at: http://journals.kent.ac.uk/index.php/feministsatlaw/
article/view/45/121 (accessed 27 July 2015).
Merry, Sally (1988) Legal Pluralism. Law & Society Review, 22(5): 869.
Mohanty, Chandra Talpade (1991) Under Western Eyes. Feminist Scholarship and
Colonial Discourses. In: Chandra Talpade Mohanty Ann Russo and Lourdes Torres
(eds) Third World Women and the Politics of Feminism. Bloomington, IN and
Indianapolis, IN: Indiana University Press, pp. 5180.
Molyneux, Maxine (2000) Twentieth-century State Formations in Latin America.
In: Elizabeth Dore and Maxine Molyneux (eds) Hidden Histories of Gender and the
State in Latin America. Durham, NC and London: Duke University Press, pp. 3384.
Palacios Jaramillo, Patricia (2008) Los Derechos de las Mujeres en la Nueva Constitucion.
Available at: http://www.institut-gouvernance.org/es/analyse/fiche-analyse-452.html
(accessed 2 September 2015).
Plan V (2014) Sumak Kawsay, La Palabra Usurpada. Available at: http://www.planv.com.ec/
historias/sociedad/sumak-kawsay-la-palabra-usurpada (accessed 8 September 2015).
Quijano, An bal (2000) Colonialidad del Poder y Clasificacion Social. Journal of WorldSystems Research, XI(2): 342386.
Radcliffe, Sarah (2012) Development for a Postneoliberal Era? Sumak Kawsay, Living Well
and the Limits to Decolonisation in Ecuador. Geoforum, 43(2): 240249.
Radcliffe, Sarah and Westwood Sally (1996) Remaking the Nation: Place, Identity and
Politics in Latin America. London and New York: Routledge.
Ram rez Gallegos, Franklin (2010) Desencuentros, Convergencias, Polarizacion (y
Viceversa). El Gobierno Ecuatoriano y los Movimientos Sociales. Nueva Sociedad,
227: 83101.
Rodr guez, Eugenia (2000) Civilizing Domestic Life in the Central Valley of Costa Rica, 1750
1850. In: Elizabeth Dore and Maxine Molyneux (eds) Hidden Histories of Gender and the
State in Latin America. Durham, NC and London: Duke University Press, pp. 85107.
Snider, Laureen (1994) Feminism, Punishment and the Potential of Empowerment.
Canadian Journal of Law & Society, 9(75): 75104.
Spivak, Gayatri Chakravorty (1988) Can the Subaltern Speak? In: Cary Nelson and
Lawrence Grossberg (eds) Marxism and the Interpretation of Culture. Champaign, IL:
University of Illinois Press, pp. 271313.
Stoler, Ann Laura (1995) Race and the Education of Desire: Foucaults History of Sexuality
and the Colonial Order of Things. Durham, NC: Duke University Press.
Tamayo, Cecilia (1998) Entre la Sombra y la Esperanza: Investigacion de Impacto de las
Comisaras de la Mujer y la Familia. Quito: CEPAM.
Trownsell, Tamara (2013) Robust Relationality: Lessons from the Ontology of Complete
Interconnectedness for the Field of International Relations. Doctoral dissertation,
American University, Washington, DC, USA.
UNESCO (1984)Problems that Concern Women and their Consideration in Development
Planning. Report presented to UNESCO by CEPLAES. Quito: UNESCO.

Downloaded from fty.sagepub.com at FLACSO Parent on September 14, 2016

156

Feminist Theory 17(2)

Valladares, Lola (2003) Entre Discursos e Imaginarios: Los Derechos de las Mujeres
Ecuatorianas en el Debate de la Asamblea Nacional de 1998. Masters dissertation,
FLACSO, Quito, Ecuador.
Varley, Ann (2000) Women and the Home in Mexican Family Law. In: Elizabeth Dore and
Maxine Molyneux (eds) Hidden Histories of Gender and the State in Latin America.
Durham, NC: Duke University Press, pp. 238261.
Walsh, Catherine (2009) Interculturalidad, Estado, Sociedad: Luchas (De)Coloniales de
Nuestra Epoca. Quito: Abya Yala.
Yashar, Deborah (2005) Contesting Citizenship in Latin America: The Rise of Indigenous
Movements and the Postliberal Challenge. Cambridge: Cambridge University Press.
Zaffaroni, Eugenio Raul (2011) La Naturaleza como Persona: De la Pachamama a la Gaia.
In: Carlos Espinosa and Camilo Perez (eds) Los Derechos de la Naturaleza y la
Naturaleza de sus Derechos. Quito: Ministerio de Justicia, Derechos Humanos y
Cultos, pp. 334.

Downloaded from fty.sagepub.com at FLACSO Parent on September 14, 2016