By Carol Bohmer and Amy Shuman
Political asylum is a gender neutral concept. The law of asylum is based on the 1951 Convention on the Status of Refugees, currently adopted by 147 countries, so the actual asylum law of receiving countries is quite similar. The impact of this ostensibly gender neutral law is, however, far from gender neutral. Subtle and not so subtle cultural, social and political attitudes and expectations can affect how a woman’s claim for asylum is evaluated by the authorities. In some cases, this situation is slowly changing, but in general women are treated differently (and usually less well) by the asylum authorities.
Most of the ways that the political asylum treats women differently are not articulated in policy but rather are implicit in the hearing processes, especially notable in explanations for denials of asylum. In our work, we have categorized these as 1) how credibility is tied to gendered practices in the asylum hearings themselves, especially expectations of women’s demeanor; 2) gendered expectations about the content of women’s accounts of the violence and persecution they have experienced; 3) more general discrimination against women applicants, who are not taken seriously or whose legitimacy depends on additional requirements; and 4) evaluation of women’s political action is sometimes regarded as either not political enough or as belonging to such a general category that granting political asylum would “open the floodgates” to too many individuals. In other words, women are often evaluated differently than men.
Cultural perceptions determine which story of persecution is most likely to be believed. Successful claims meet the expectations of the immigration officials, and in the case of asylum, officials have expectations not only about the content of the narrative but also about how it is told.. This is true in law generally, though it is even clearer in asylum cases because cultural assumptions of what is normal create obstacles to understanding accounts of usually extraordinary circumstances. For example, It is important for a claimant to present herself in an acceptable way, showing the “right” amount of emotion. This seems to be more difficult for women who are often caught between being labeled “hysterical” if they present themselves too emotionally, and “cold” or uncaring if they seem too unemotional.
In addition to cultural differences that can create misunderstandings between the applicant and the asylum officials, some factors are particular to women. For example, women may have more difficulty telling their stories, especially about sexual assault. Problems with interpreters are also connected to this reluctance; women are less willing to describe sexual persecution to a male interpreter, especially if they fear that he will reveal her secrets.
The content of a female applicant’s story is judged, as well as its presentation. For example, judgments were frequently made about whether a mother’s behavior toward her children seemed “appropriate” based on the immigration officials’ cultural assumptions. In some cases judges decided that the behavior of a woman was not credible because in their view a mother wouldn’t act as she claimed, for example in leaving her children behind with relatives when she fled. Sometimes the reverse is true and mothers are deemed not credible because they didn’t flee immediately but waited until they could flee with their children.
Women’s political activities are often regarded less seriously. Asylum officials often assume that women do not have a political identity of their own, or to have come to the attention of a government because of their political actions. Nor are they expected to have a fear of persecution independent of their spouse or other male relatives. Although women are more likely to file claims based on imputed political opinion (the opinion of another person which results in persecution of the claimant), that doesn’t mean they are only persecuted because of their relationship to a man. A significant percentage of women asylum seekers claim persecution based on their own political activities. But the authorities are less willing to acknowledge that these claims are valid than when men make such claims. In addition, women’s political activities sometimes blur social domains, for example using handicraft as a protest medium, they are not always regarded as participating in politics which is defined in male terms.
Claims that are particular to women generally fall under the category of persecution based on “membership in a particular social group.” Courts often refuse such claims, arguing that the violence suffered by the applicant is private, usually perpetrated by a member of the applicant’s family and therefore not appropriate for asylum. For persecution to be the basis of an asylum claim, it has to be either performed by the state, or condoned by it, or the state has to be shown to be unable or unwilling to prevent it. Much of the violence against women takes place in domestic spaces, at the hands of husbands, family members, or in the case of FGM, women in the local community. In many case, the state provides little by way of protection for such practices, and, in many cases actively condones them.
In contrast to the difficulty women often have in persuading officials of the credibility of their political activism, women have had success with claims to have suffered from what the officials regard as exotic or even barbaric cultural practices. There is a body of scholarship which argues that those claims which are based on practices attributable to non-western cultures, like FGM and honor killings are much more often successful than those based on domestic violence, which is all too similar to behavior at home. Fauziya Kassindja, whose case was the first to recognize fear of FGM as a basis for asylum can be said to have been successful because the persecution was attributable to the cultural “backwardness” of her homeland. She was able to cast herself as the cultural Other, as someone fleeing from a more “primitive culture.” This interpretation arises from the present day media depictions of the horrors of gender related violence abroad including such practices as bride burning in India, FGM in Africa, honor killing in the Middle East, and rape as a weapon of ethnic genocide in Bosnia, Rwanda and Darfur. Here the immigration officials attributed persecution to traditional and/or barbaric cultural practices. The practices here are framed in a colonial context: men steeped in a backward culture subjugating helpless women in ways that cannot even be grasped by the Western imagination. It draws on racialized concepts of the nonwestern, and relies on the idea of a primitive collective pathology (manifesting itself in unimaginable stories of violence against women at the hands of barbaric men). The view that this is indeed “barbaric” and therefore persecution was stated specifically in a recent decision by the U.S. Court of Appeals. In that decision, the judge made it clear that he didn’t want to use the abbreviation FGM but rather the words themselves. He said: “The use of initials, if it has any effect, serves only to dull the senses and minimizes the barbaric nature of the practice” Mohammed v. Gonzales (2005: 789).
Thus the outrage that makes such a claim successful is directed toward particular, highly selective, practices rather than about the overall problem of violence against women. The decision to grant asylum in the case of a “barbaric” cultural gender practice creates the illusion that the persecutory act is wholly unlike the violence that women in the West suffer. For this reason, “ordinary” domestic violence is much less likely to result in a successful asylum claim, even when it is accepted by the policy and/or practice of the homeland of the applicant, and sometimes even when the woman sought and failed to receive protection from the state. Honor killings, FGM, and rape as a weapon of ethnic cleansing are seen as public, in contrast to domestic violence, which, in its corollary form in the U.S. is seen as private but deserving public protection. Honor killings are acts of public retribution to preserve the public reputation of a family. FGM is public in the sense that it is a culturally sanctioned practice. Rape as official policy is also public.
In countries where there is a merging of law and religion, as, for example those Islamic countries whose legal system is based on Sharia law, the definition of what is gender based, what is political, and what is religion becomes murky. A Moroccan woman, suffered several beatings at the hands of her father who punished her for acting inappropriately according to the family’s fundamentalist Muslim beliefs. This case was framed as one of religious persecution, but could also be seen as a clash of different gender norms or political conflicts about male domination. Religion is a stand-in here for patriarchal norms (the brothers were not beaten) and social arrangements concerning the status of women. The religious beliefs are considered foreign and “barbaric” by the western judges, and therefore someone who objects to them is a good candidate for asylum.
When asylum officials reject a case, they are not necessarily saying that someone didn’t suffer a trauma. They are not denying the fact of catastrophe. Instead, when, for example, they deny a case about rape or domestic violence because the rape or violence was not political and/or because the woman was not persecuted as a member of a targeted social group, they are saying that the catastrophe, the trauma, the violence was part of another realm, crime, ordinary everyday crime, rather than political persecution. Women, as people seen to occupy ordinary, domestic life, rather than political (public) life, are more likely to be the victims of crime.
One of the central problems with current thinking is the assumption that ordinary activities become politicized. Teaching women to read or promoting anti-government ideas might be ordinary (now) in the U.S. and U.K. As students of trauma know, it could be the other way around. Catastrophic, traumatic events can become tragically ordinary. Recovering from trauma involves a complex relationship with ongoing ordinary life, but this does not mean that they are experienced as ordinary.
The reframing of opposition to oppressive norms from personal to political is another development in process. The UK Refugee Women Resource Project ‘s report says: “The fact that women oppose repressive social norms that restrict their civil and political freedoms not interpreted as a political act by the Home Office, although as the RWLG (Gender Guidelines) makes clear these personal acts of defiance are often highly political” (2003: 102). Thus, while a number of countries have guidelines about how to deal with women’s asylum claims, they are often not followed in practice.
The good news is that courts are slowly beginning to exhibit changing social attitudes toward gender based claims. For example, there have recently been a couple of domestic violence cases (known as L.R and R.A) which were successful after languishing in the bureaucracy for years. In the case of RA, the US government finally acknowledged that a woman seriously abused by her army officer husband was a member of a particular social group, rather than someone whose persecution was private and therefore entitled to asylum. Progress is slow and constrained by the framing of the law itself, but nevertheless noticeable.
Carol Bohmer is a lawyer and sociologist who is presently a Visiting Associate Professor in the Government Department at Dartmouth College. She has worked in the area of law and society, examining the way legal and social institutions interact both in the United States and abroad. She has published The Wages of Seeking Help: Sexual Exploitation by Professionals (Westport, CT: Praeger Press, 2000) and Sexual Assault on Campus: The Problem and the Solution with Andrea Parrot. (New York: Lexington Press, 1993).
Amy Shuman is Professor of Folklore in the Department of English at the Ohio State University and holds affiliate positions in the departments of Anthropology and Women’s, Gender, and Sexuality Studies. She is the author of two books on narrative: Storytelling Rights: the uses of oral and written texts among urban adolescents (Cambridge) and Other People’s Stories: Entitlement Claims and the Critique of Empathy (Illinois). She is a Guggenheim Fellow and publishes on human rights, refugee studies, narrative, disability, and folklore.
Carol Bohmer and Amy Shuman are the authors of Rejecting Refugees: Political Asylum in the 21st Century.
