IV.1. Searching for gender between the lines

In order to apply Bartlett’s feminist legal method, it was necessary, first of all, to situate her ideas in the historical and geographical context in which they were produced, in order to identify common and divergent elements in the reality which is the focus of our research. This process of transposition also involved considering the differences in history and culture which are reflected in the author’s discussion of her theory, and the need to be examine her ideas through the lens of the Brazilian experience.

^{Bartlett wroteFeminist Legal Methodsin 1990}, when she was a professor of law at a North American university, taking into account the configurations of common law tradition.When a body of law is developed with an emphasis on judicial precedents, as is the case in the United States, the ideological conceptions of judges are more easily discernable, which facilitates analysis of their influence on the decision-making process. In addition, teasing out gender representations is a simpler undertaking, since the relevant actors involved in cases which have shaped the course of law are well-defined and neatly characterized.

The Brazilian system, on the other hand, is based on the civil law tradition,which differs from common law in several ways. Under this system, the letter of the law carries more weight; the law is conceived as a set of general and abstract norms which, in criminal law, involves creating broad criminal statutes which are formulated based on universal categories. This way of organizing the law influences the discourse of all actors in the legal system to a greater or lesser extent, including those who write about related topics, such as drug crime.

Under the Brazilian Anti-Drug Act (Law No. 6343, 2006), the following acts are outlawed:

importing, exporting, sending, preparing, producing, manufacturing, acquiring, selling, making available, offering, storing, transporting, carrying, holding, prescribing, providing, delivering, or supplying drugs, even free of charge, without authorization or in breach of legal or regulatory norms.

In definitions of offenses, terms such as “any individual” are used, as well as lists of verbs without associated subjects. Authors who analyze these offenses often characterize them as “common” crimes, meaning anyone can be charged with them. However, other provisions of the same Act, intended to aid interpretation of the legislation, use descriptors, which makes this characterization less straightforward.

The verbs listed above are used to define the majority of related offenses, and at first glance there seems to be no indication that offenders must be of a certain gender. However, as Elena ^{Larrauri (1994}) has pointed out, purported linguistic neutrality does not rule out “gendered” interpretations of laws (p. 24). This reality affects how Bartlett’s questions might be asked in this particular context in practice, since the use of universal legal categories makes it difficult to identify specific, concrete elements to incorporate into research.

This means that an answer to “the woman question” is not always readily apparent in texts. However, echoes are often present, and the difficulty of deciphering the criminalized body does not necessarily mean the question cannot be answered. Behind the apparent universality certain telling conceptions of the world of drug crime can be discerned, and these deserve analysis. Similarly, the absence of explicit representations in itself says something about how knowledge is produced in the field of criminal law in Brazil. In brief, we believe it is necessary to listen for the unsaid, to seek answers between the lines, with due consideration of the legal and social context in which analyses are carried out.

IV.2.The woman questionand gender as an analytical category

The first component of Bartlett’s feminist method consists of “asking the woman question”. However, an examination of the feminist literature on the decolonial and intersectional dimensions of research reveals several issues regarding the use ofwomanas a category. Given the focus of our study, the criminal woman in Brazil, these issues seem particularly relevant, as the topic requires the incorporation of several markers and the avoidance of essentialist conceptions of womankind.

Moreover, it was important to bear in mind a number of particular issues which are evident in the literature on imprisonment in the field of criminal science. As Débora ^{Diniz (2015}) has pointed out, much of the literature on crime and prisons is characterized by gender, which influences our understanding of women’s place in these settings. Criminal science studies are not neutral, but permeated by ideas of violence and organization, usually linked to masculinity: “the way of writing about crime, gangsters and jails is masculine and immersed in patriarchy, which perpetuates the hegemonic language of gender […] the hegemony of men imposes a particular way of talking about prisons: the language of blood, accusations, and scandal” (p. 584).

The hegemonic models of masculinity which permeate the discourse on crime influence the choices and paths of female criminals, during the process of differentiating themselves from women who do not engage in criminal activity-through the pursuit of power and the use of violence, for example-as well as in the formation of their identities and sexualities, especially in their relationships with other women in the prison. Mariana ^{Barcinski (2020}) argues that:

an understanding of how power relations are constructed and reproduced in prisons can be developed by examining the efforts of some women to insert themselves into a “man’s world”, by claiming for themselves privileges generally understood as being reserved exclusively for men. [...] “being a man”-and being recognized as such by other inmates, as well as by prison staff-in a wo’en’s prison means escaping the invisibility inherent to mass incarceration (p. 41).

Problematization of the termwomanhas long been a subject of interest for feminist authors. Even those who do use it as a category of analysis acknowledge the associated problems. Linda ^{Nicholson (2000}) criticizes the use of the categorywomento group all women together, to focus on what they have in common, while using other markers as a means of differentiation. She considers it essential that thewomancategory-and gender-be viewed as a set of variables rather than as a given, static condition, thus ensuring that the body and the culturally diverse ways of understanding it are incorporated into any analysis (p. 14). Linda Alcoff (1988), in turn, argues for use of thewomancategory as positionality, incorporating considerations of relationality and how different markers contribute to the construction of “what it means to be a woman” (p. 433).

Criticism of the use ofwomenor gender as a category is intended to challenge traditional ideas regarding the construction of knowledge. Decolonial feminists such as Yuderkys Espinosa ^{Miñoso (2020}) question feminist theories which, even unconsciously, viewwomanas a universal category, thereby equating the circumstances of all women, reinforcing the view ofwomanas being in a constant state of subjugation toman, and disregarding all distinctions, including those related to geography and the historical moment in time (pp. 110 and 113).

The use of fixed, homogeneous categories-not only woman or gender, but also in discussions of race or sexuality-contributes to the exclusion of people who do not fit the “dominant image” of the group in question. As María ^{Lugones (2020}) points out, the category ofwomenis generally taken to refer to “white, heterosexual, middle-class females” (p. 60). A similar example is the term “Black”, which, when used in isolation, is taken to mean “Black, heterosexual males”. Viewed as such, the intersections highlight the gaps inherent to these categories. In criminology, the issue is also evident in discourse around “mothers”; the term invokes cis, heterosexual women, sidelining transgender, lesbian and bisexual women in discussions of maternal rights.

Angela ^{Harris (2020}) argues that avoiding thewomancategory and “gender essentialism” in feminist law theory is essential for feminists not to silence the same voices which are excluded or ignored by the “voice of law” (p. 46). In Harris’s view, using this category can merely be a “different form of abstraction” which does not contribute to subversive critiques.

The author goes on to argue that feminist theorization aboutwomenshould focus on relationships, not essences (^{Harris, 2020}, p. 66). She does not deny the need to use categories in analytical processes, recognizing that ultimately, abandoning them would make it impossible to formulate theories. Her position is that such categories should always be relational and unstable, in contrast to the abstractions and “frozen” categories which are the norm in law (p. 47).

^{Bartlett (1990}) herself recognizes these problems, and reflects about the uses of the woman question, understanding that it “asks about exclusion”. However, she goes on to acknowledge that, as feminist theories advanced, feminists began to observe that any analysis using the general category ofwomenis itself exclusionary. The use of the term suggests a search for a universal being, which disregards other markers of marginalization, hiding them behind a nondescript ideal of femininity (p. 847).

However, she argues that any category, any identity marker, no matter how specific, necessarily excludes many others; as such, using the woman question as a model for deeper inquiry raises further questions, such as: “What assumptions are made by law about those whom it affects? Whose point of view do these assumptions reflect? Whose interests are invisible or peripheral? How might excluded viewpoints be identified and taken into account?” (^{Bartlett, 1990}, p. 848).

Moreover, as an analytical category, gender has been viewed by feminist authors as a constitutive element of social relations and a way of signifying relations of power (^{Scott, 1995}, p. 86). Joan Scott, for example, positions her “definition of gender” as a way to “conceive a social reality in terms of gender” (p. 83). The core of her definition rests on the connection between two propositions. The first views gender as a constitutive element of social relationships based on perceived differences between the sexes, encompassing culturally available symbols that evoke representations of gender, the normative concepts that attempt to limit and contain alternative interpretations, the political conceptions behind these restrictive interpretations, and subjective identity. The second proposition holds that gender is a primary way of signifying relationships of power, which thus enables the “theorizing of gender”.

Drawing on Scott’s ideas, Fabiana ^{Severi (2016}) argues that discussinggenderin research has the potential to enhance our understanding of the masculine and the feminine, by transformingmenandwomeninto problems, instead of using them as fixed categories (p. 83). The use of gender as a category facilitates more open dialogue which includes other relevant markers and an intersectional perspective. This view holds that, like “women”, “gender” is not a static or self-contained category, but one which “intersects with racial, class, ethnic, sexual and regional modalities of discursively constituted identities” (^{Butler, 2003}, p. 20). However, if we wish to study these categories-genderorwomen-from an intersectional perspective, it is important to point out how ideas of intersectionality are shaped by research.

According to ^{Collins (2019}, p. 2) the concept of intersectionality is not fixed, but rather an umbrella term which encompasses a “social theory in the making”, based on categories that represent resistant knowledge traditions (p. 10). In this author’s view, a mistake often made by feminists who want to approach their research from an intersectional perspective is to take a static view, conceptualizing intersectionality as a “pre-packaged bundle” of racial, ethnic, and national differences to be subsumed into the gender category (p. 107).

Contrary to this view, intersectionality can take different forms⁶; and can be thought of as a social theory-that is, as a body of theories which seek to explain a given phenomenon-and as a method of theorization, meaning the processes and methodologies employed by researchers to develop explanations of social phenomena. In the case of this paper, the second conception is more appropriate, as we are seeking to use the ideas of intersectionality as part of a process of decolonization of Bartlett’s feminist legal methods, to guide us as we formulate our questions and decide on the analytical categories we will employ.

^{Collins (2019}) mentions that Linda Tuhiwai Smith’s call for decolonizing methodology “requires thinking through the existing relationships between epistemic power, intersectional theorizing and methodology” which reflect the epistemological rules that govern academic research (p. 143). According to Collins, there are no inherently intersectional methodologies, but rathercore constructs⁷of intersectionality which can influence methodological choices.

One of these core constructs isrelationality:

Race, gender, class, and other systems of power are constituted and maintained through relational processes, gaining meaning through the nature of these relationships. The analytic importance of relationality in intersectional scholarship demonstrates how various social positions (occupied by actors, systems and politic/economic structural arrangements) necessarily acquire meaning and power (or lack thereof) in relation to other social positions (^{Collins, 2019}, p. 46).

Among the different modes of understanding and visualizing relational thinking,⁸we are most interested in the ^{Collins’s (2019}) ideas aboutconjunctures(p. 234). The construct of conjunctures provides an analytical framework for exploring how systems of power (and, consequently, analytical categories) intersect; conjunctures are sites where relations of power are in evidence. It is, however, essential to bear in mind that these relations are not fixed; they change in accordance with the systems that give rise to them (p. 235). Research into conjunctures is essential, according to Collins, as these sites enable us to visualize how different categories and power systems relate to and influence each other.

We understand that the idea of exclusion thought by in the woman question and our discussion ofcriminal womenand female criminalization involves conjunctures such as those discussed by Collins. The categories ofwomenandgenderare present in these conjunctures, and helped us define the scope of this paper.

Collins also warns of two traps which researchers who include these and other broad categories in their work often fall into, and which can distort the ideas of intersectionality. The first is to think of gender, race and class as fixed categories which are linked to subordinate identity groups (gendermeaning women;racemeaning black people; andclassmeaning poor people). She notes, however, that it is quite possible to study “privilege” within these categories (^{Collins, 2019}, p. 39).

The second is to forget that the use of these categories is not mandatory for all studies, and that they are not relevant in all circumstances. The mere presence of one or more of these categories in a critical analysis is not sufficient for it to be characterized as intersectional. For^{Collins (2019}), what is most important is to view all the categories employed in a study as relational, and to seek connections between them while acknowledging inherent differences. It is important to ask what the relationships between categories reveal about the systems of power they fit into, as well as how they shape one other (p. 218).

It is also important to remember that researchers who ask about women and gender may come up with different answers, which are nonetheless equally useful with regard to developing an understanding of the topic being studied. This is because, even though the terms have played key roles in the production of feminist knowledge, they have their own history and often take on different meanings in feminist studies. For this reason, we seek to separate the concept of gender from that ofwoman, to avoid treating them as synonyms, thereby facilitating discourse around masculinity and sexuality as key categories in the development of a criminal identity, especially due to the importance of incorporating considerations of the performativity of certain traditionally masculine characteristics which women may rely on when seeking to insert themselves into the criminal world.

We take as a starting point, then, the notion that discussing “gender” in feminist research allows us to highlight the issues which pervade our particular area of study, while avoiding the problematic aspects of traditional research methods; that is, falling back on one-dimensional, essentialist and exclusionary views. This does not mean completely abandoning the woman question as a method, since we do ask for thecriminal woman; as Bartlett encourages, we aim to focus on a specific group of women as we “ask about exclusion”.

IV.3. The dialogue between researcher and subject

Discussing the criminalization of women from a feminist perspective is challenging. This is because researchers, as predominantly white academics, generally occupy a position of privilege in relation to the subjects they study, a position which permits them toknow(within the limits of scientific investigation) and talk about the Other, while she cannotknowthem or occupy the same spaces.⁹Although feminist discourse does highlight and criticize theothernessof women in spaces of knowledge production, any effort to study criminalized women requires acknowledging a marginalization which we do not share, and that these women are now in a position of extreme differentiated exclusion; they are, in effect, “the Other of the Other” (^{Miñoso, 2020}, p. 99). We must recognize the danger of “romanticizing and/or appropriating the vision of the less powerful while claiming to see from their positions. To see from below is neither easily learned nor unproblematic, even if ‘we’ ‘naturally’ inhabit the great underground terrain of subjugated knowledges” (^{Haraway, 1995}, pp. 22-23).

In this regard, a decolonial perspective can keep us alert to the risk of implementing an exclusionary and oppressive rationality, and help us bear in mind the importance of employing categories and theories which have their roots in subaltern experiences and are based on “lived realities” (^{Lugones, 2020}), by maintaining an “epistemological disengagement”. This involves “laying bare the forms, modes, strategies, and discourses by means of which certain social groups are defined as ‘others’ by those in places of power and domination” (^{Curiel, 2020}, p. 135). In criminal science, then, building knowledge using feminist methods and epistemologies is only possible if we can disconnect ourselves from the perspective of whiteness by populating the field of study (either directly or indirectly) with bodies which have been subjected to impoverishment and denied the capacity to develop knowledge (^{Miñoso, 2020}, p. 109).

In order to break with privileged representations of Otherness, Camila ^{Prando (2019}) proposes a shift towards a “marginal” criminology, including feminist ideas, which we seek to apply here. She maintains that race should be analyzed not only with regard to criminalized (black) bodies, but also with regard to the (white) bodies which produce knowledge in the field. She argues that producing knowledge which challenges traditional conceptions and which is linked to feminist epistemologies requires a number of practices to be implemented and discourses to be opened up, such as: a) efforts to overcome the conception of the “colonial Other” by ensuring a plurality of researchers and representations are given a voice; b) the use of new methods and expressions in research while ensuring, through constant questioning, that these do not engender epistemic violence; and c) the use of feminist and decolonial theories as investigative resources in order to challenge the agendas and biases inherent to the field (^{Prando, 2019}, p. 42).

IV.4. Feminist practical reasoning as a method of building knowledge in law: thecriminal womanas a plural subject

Feminist practical reasoning is committed “to the notion that there is not one, but many communities to which one might look for ‘reason’” (^{Bartlett, 2020}, p. 268). As a means of reframing rationality, it takes into account contextual factors, acknowledges greater diversity in human experiences, and aims to move away from homogeneous interests and unilateral points of view (p. 270).

Initially, while reading and interpreting Bartlett’s writings we sought totranslateher ideas by asking the following questions: When gender perspectives can be discerned in a text, how did this happen? Does this gender perspective generalize? Our decision to ask these questions was guided by the writings of feminist authors who reject the notion of a “normative woman” (^{Costa, 2014}), and the idea of a universal female experience.

However, we soon realized that we needed to anchor our analysis in other theoretical and methodological tools, so that it could be viewed not only as a method of “doing law”, but also as a method of building knowledge about the law (knowing in law), in the context of the Brazilian legal system and with the criminal woman as the subject-object of analysis.

For this reason, in addition to ^{Bartlett’s 1990}article, we decided to incorporate ideas from Alda ^{Facio’s 1992}book in which she outlines a number of steps for feminist authors to follow in order to examine the law from a non-androcentric perspective, and Gina ^{Heathcote’s 2018}article in which she discusses legal subjectivity from a feminist and intersectional perspective, proposing three feminist methodologies and arguing for the need to challenge other feminist methods in order to further consider the voices, and knowledge practices, of “peripheral subjects” which remain silenced.

Following Facio’s methodological steps helped us align our study with the reality of the law in Brazil and Latin America, which focuses on the literality of legislation and views discourse concerning legal texts as an important means of knowledge production. One of Facio’s six steps concerns the need to expand our understanding of sexism and how it manifests itself by “identifying and questioning the aspects of legal doctrines and principles and the foundations of the law-as well as the research which justifies these principles and doctrines-that exclude or subordinate women or otherwise make them invisible” (^{Facio, 1992}, p. 77).

One way to go about this is to look for specific instances of sexism in particular texts, such as the use of “double parameters” (where human behavior is evaluated based on different parameters depending on gender), reference to “the duties of the sexes” (designating what is normal and abnormal for each one), or “sexual dichotomism” (the attribution of diametrically opposed characteristics to men and women) (^{Facio, 1992}, pp. 89 and 91-92). In order to effectively identify these manifestations, Facio highlights the need to analyze linguistic choices and pay close attention to how the text is constructed.

Two further steps involve developing an understanding of which groups of women are viewed as “the Other” in a text, and what conception of “woman” underlies it (^Facio,1992, pp. 95-96). These steps make it possible to identify aspects of intersectionality in a text and develop a deeper understanding of thewomandepicted therein.

These last two steps are reflected in ^{Heathcote’s 2018}article,On Feminist Legal Methodologies: Split, Plural and Speaking Subjects. In this essay, the author argues for the need to “actively incorporate contemporary understandings of sex and gender as intersectional and thus requiring engagement with (at the very least) race, sexuality, ablebodiness and class within feminist legal methodologies” (p. 2). To this end, she develops the concept of “plural subjects” as a means to uncover “what sits behind” supposedly universal legal knowledge (p. 11).

^{Heathcote (2018}) advocates for Ratna Kapur’s idea of using a “peripheral subject” as a starting point for the production of feminist knowledge, since this ensures non-dominant legal systems are recognized as relevant and the perspectives, agency and voices of subjects other than western men are incorporated:

the peripheral subject emerges as a mechanism for engaging political consciousness in the foundations of law through attention to inequalities and their gendered intersections. That is, the peripheral subject asks difficult (and different) questions with regard to whose interests are represented in gender law reform and, given her location outside of dominant power structures and knowledge producing spaces, is a reminder to articulate gender as embedded in racialised, heteronormative and colonial histories (p. 12).

The idea of plural subjects, meanwhile, constructed from peripheral, nomadic and diasporic voices, challenges the male/female binary as the central or single organizing force in critical feminist accounts and in law. Heathcote believes that feminist projects must work actively to break with this conception of knowledge, in favor of the development of “plural understandings of subjectivity as a mechanism to intervene and disrupt precisely what we think lawshouldbe” (^{Heathcote, 2018}, p. 14).

In order to employ feminist practical reasoning from a decolonial perspective, the idea of “plural subjects” and “peripheral subjects” can be useful, as it reminds us to view the criminal woman as a subject capable of breaking with the universalizing constructions of gender which are created and reproduced by the law. At the same time, researchers’ capacity to “know” the subject-object of study often depends on available representations in the field. In the specific context of disrupting the systems of power and knowledge production, it is important to remember that highlighting these representations can spur legal and political change and reform, thereby influencing outcomes for women who come into contact with the criminal justice system.