Reflecting on the Conceptualisation and Criminalisation of Obstetric Violence

For our first post, we focus on Isabel Barbosa, Francesca Nardi, Rebecca Reingold, and Estefanía Vela, ‘A Critique of the Conceptualization and Criminalization of Obstetric Violence in International Human Rights Frameworks’ in Alma Beltrán y Puga and Rosa Celorio (eds) Building Bridges: Contemporary Perspectives on Gender, Sexuality and International Human Rights Law (2024) 3-24. The chapter evaluates the strengths and limitations of preventing obstetric violence through a criminal law framework, considering both theoretical and practical challenges, drawing upon evidence from jurisdictions that have already adopted a criminal law framework.

Reflection 1: Conceptualisation

The chapter starts with an examination of the various conceptualisations of obstetric violence, outlining different definitions across national legislation, policy, and in human rights frameworks. While there is almost universal agreement that obstetric violence is a form of gender-based violence, the authors note that there is no universally agreed definition of obstetric violence. They recognise that the highly subjective nature of how obstetric violence is experienced by victim-survivors makes it a difficult phenomenon to define with any precision, and the lack of precision has led to inconsistencies in how it is applied in law, which affects legal enforcement and policy responses.

It is interesting to note that most States considered in the chapter already had existing crimes for different kinds of conduct which might fall under the scope of obstetric violence (such as assault), but nevertheless developed new crimes specific to obstetric violence. The chapter explains that this approach appears to be instigated using the term “violence” which instinctively calls for a response from the criminal law. Thus, human rights bodies and experts have specifically required governments to criminalise obstetric violence as part of their human rights obligations to ensure women’s rights to non-discrimination. Thinking more broadly, it would be interesting to compare the efficacy of having a specific crime as opposed to simply using existing crimes to prosecute obstetric violence. Of course, based on the arguments raised in the chapter, neither is necessarily appropriate.

Whilst the arguments against reliance on criminal law are compelling, we thought, in going forward, that it might be helpful to understand the criminal law as one of many legal tools at our disposal to address obstetric violence, rather than relying on it as the only tool. Exploring how it can be used in conjunction with other interventions would be useful. In this respect, we agree with the authors that a more nuanced approach is necessary, but this can only be meaningfully achieved if we are clear about how to conceptualise obstetric violence.

Reflection 2: Systemic Liability

A second core focus of this chapter concerns whether criminalisation really addresses the harms of obstetric violence. What Barbosa et al seek to pull out is that, oftentimes, the individualised focus of criminal law, which centres ‘bad’ doctors and midwives, fails to appreciate that the individual actions of a practitioner are often symptomatic of wider systemic issues within the hospital. One consideration, not explored within this chapter, is that criminal law need not focus exclusively on individual wrongdoing. For example, criminal law may be developed to hold healthcare institutions and their leaders criminally liable in certain circumstances. In the South African context, corporations and associations (and their directors and members) may be held criminally liable. The notion of criminalising institutions is thus not entirely unheard of. As regards the types of wrongdoing for which institutions may be held liable, civil law claims against hospitals may provide guidance. In the UK, for example, courts have held hospitals tortiously liable for wider operational failings such as inadequate training, systems which prohibited effective communication amongst staff and disorganised shift patterns. While the chapter is correct in noting that criminal law is currently primarily used for individual wrongdoing, it encourages us to consider arguments in favour of expanding this branch of law to address certain types of institutional wrongdoing.

Reflection 3: Alternative Approaches to Criminalisation

The chapter also discusses alternative approaches to criminalisation, due to their potential to achieve a reparation beyond mere punishment. In this sense, the authors highlight civil and administrative remedies used in Argentina and Mexico as mechanisms which may be implemented to address obstetric violence in other countries. Therefore, one of the most outstanding points of the chapter is calling attention to measures that could be more beneficial for victims in terms of accessibility such as legal aid programs, class-action lawsuits, or specialised courts for medical harm. However, these responses are usually dismissed because they are perceived by many victims as too lenient. For that reason, a deep and critical dialogue is required to analyse how non-criminal legal mechanisms could provide more effective and survivor-centred justice.

Additionally, the chapter refers to international human rights mechanisms, specifically highlighting SFM v Spain, a groundbreaking decision by the Committee on the Elimination of Discrimination against Women. Nevertheless, while these mechanisms are essential for holding States accountable, their enforcement often relies on the goodwill of State actors. In consequence, a more comprehensive analysis is needed to strengthen domestic legal systems in terms of ensuring international human rights rulings are translated into tangible outcomes for survivors. Lastly, thinking more broadly, we note that the chapter did not explore the potential of restorative justice models that incorporate survivor-led processes. Restorative justice focuses on acknowledgement, accountability and institutional reform which could offer more meaningful justice than punitive or adversarial legal mechanisms.

Conclusion

The chapter offers a compelling take on the challenges of defining and responding to obstetric violence, as it constitutes a multicausal phenomenon. Among various legal and policy responses, the criminalisation of obstetric violence is frequently included on the agenda at both national and regional levels, due to its perceived deterrent effect. Although these mechanisms highlight behaviours that are socially harmful, their effectiveness is unclear. Furthermore, relying on criminalisation may create a serious risk of re-victimisation as defendants’ guilt has to be proven, requiring victims to deal with the known difficulties of the adversarial process, deepening their suffering. Consequently, reflection is an essential labour to reach suitable public policies for obstetric violence issues.

Simone Gray, Lecturer and PhD candidate at the University of KwaZulu-Natal School of Law.

Frances Hand, DPhil in Law Candidate at St Edmund Hall College, University of Oxford.

Patricia San Juan, PhD student at Andalusian Interuniversity Institute of Criminology (Malaga Section), University of Malaga.

Kerigo Odada, Reproductive Justice advocate and PhD researcher, University of Pretoria.

Camilla Pickles, Associate Professor of Biolaw, Durham University.

Georgia Speechly, DPhil in Law Candidate at Exeter College, University of Oxford.