24 Pages Posted: 21 Nov 2009
Date Written: November 17, 2009
The author argues that a feminist theory of harm is necessary if law is to respond effectively to the experiences of women. She builds on developments in feminist scholarship which have identified the ways in which women experience harm and on the inadequacy of law’s response. To advance the general argument her focus is on societies that are characterized by violent conflict or that are in process of emerging from such conflict. Such societies offer unique forums for exploring the scale and depth of harms to women and highlight novel legal responses.
To advance the arguments concerning the gendered nature of harms the author explores a developing psychological and psychoanalytical literature on gender differentials in the experience of harms. The research broadly affirms that women experience and process harm differently than men. In particular, studies have shown that being a woman is per se a risk factor for developing post-traumatic stress disorder. Although trauma analysis of conflicted and post-conflict societies remains limited, it is suggested that women in these societies experience harm more acutely and their capacity to recover is more limited.
As the author moves to address the processing of harm by law she notes much time and effort has been spent to ensure that international criminal law recognizes women’s experiences of sexual violation. This legal dimension has been critical to conflicted and post-conflict societies. Despite these strides there is ongoing skepticism about the success of this endeavor. Moreover, the international community’s emphasis on crimes involving sexual violence has led to the neglect of the psychological and socio-economic trauma suffered by women every day in conflicted and transitioning societies, and to the neglect of ‘private’ violations occurring within the home. The author introduces the concept of connected harms, which is grounded in the idea that individual violations create communities of harm which include not only the victim herself but also those people who are closely tied to her emotionally or who are in a relationship of codependency with her. These explorations further ground and extend the notion that the harms women and men experience may be different and require new conceptualization as well as novel legal solution to ensure the adequacy of accountability, redress and compensation by law.
Keywords: Gender, Feminist Theory, Harm, International Law, Trauma, Legal Accountability, Transitional Justice, Criminal Justice, Rape, Sexual Violence
Suggested Citation: Suggested Citation
Ni Aolain, Fionnuala D., Exploring a Feminist Theory of Harm in the Context of Conflicted and Post-Conflict Societies (November 17, 2009). Minnesota Legal Studies Research Paper No. 09-45. Available at SSRN: https://ssrn.com/abstract=1507793 or http://dx.doi.org/10.2139/ssrn.1507793