Christopher Alexander | 25 July 2023

In March 2023, Eleos Justice and the Cornell Center on the Death Penalty Worldwide launched their latest report, Silently Silenced: State-Sanctioned Killing of Women. Probing the complicity of States in the gender-motivated killing of women and girls, the report makes two marked contributions to femicide literature.

First, it scrutinises femicides using the framework of ‘structural violence’—that is, the ways in which social systems and institutions engender harm by affording individuals differential access to power and resources. Examining various manifestations of femicide, the report argues that patriarchal and misogynistic norms that reproduce female subjugation are integral to and result in the killing of women and girls.

Second, the report focuses on the involvement of States in these killings, employing the concept of ‘feminicide’ to do so. Originally devised to reframe femicide committed by private actors as a State crime, the concept is expanded to include those femicides perpetrated directly by the State. The report concludes that States sustain—and at times even create—the gendered forms of structural violence that result in femicides, thereby rendering these killings feminicides. The headline findings of the report are summarised below.

The death penalty for women as a form of femicide

Around the world, women face the death penalty for myriad crimes, but are believed to constitute less than five per cent of the global death row population. Under international law, the execution of pregnant women is prohibited, while domestic law in some jurisdictions (such as Zimbabwe) excludes women from the death penalty altogether. Moreover, some capital laws apply only to men: for example, of the 11 countries that designate sexual intercourse between men a capital offence, only two also recognise sexual intercourse between women as attracting the death penalty. These realities appear to support the so-called ‘chivalry thesis’—that is, the idea that women are sentenced more leniently than men who commit similar crimes. However, as this report demonstrates, the death penalty often discriminates against women in law or, more commonly, in practice.

While capital homicide laws are drafted with gender neutrality, they are frequently applied in a manner that disregards contexts and histories of gender-based violence which may lead women to kill. This is particularly so in the 26 jurisdictions wherein the death penalty for murder is mandatory, preventing courts from considering mitigating circumstances such as domestic abuse during sentencing. Capital drug laws are often administered in a manner that punishes women who are low-level drug mules—typically recruited from marginalised groups with intersecting vulnerabilities—rather than disrupting drug cartels from the top. Women are also more likely than men to be prosecuted and convicted under capital adultery laws, due to structural biases in the criminal justice process.

Before being sentenced to death, women often experience structural violence by the judiciary. Judges often fail to consider the violence or the difficult socioeconomic realities women have experienced—hardships that are themselves linked to gender oppression—as mitigating circumstances. In some case, women’s perceived transgression of gendered norms of social behaviour is treated as an aggravating circumstance.

The majority of women on death row are those convicted of murder or capital drug laws. In many cases, these death sentences violate international law, which prohibits the mandatory death penalty and restricts the lawful imposition of the discretionary death penalty to crimes of extreme gravity involving intentional killing. In other words, many of the women on death row should not be there in the first place.

Moreover, while all detainees suffer on death row irrespective of their gender, the ‘pains’ which women inmates endure are unique. For instance, women prisoners encounter barriers to accessing to feminine hygiene products and to adequate healthcare during pregnancy and childbirth, and those living on death row with their children struggle to access paediatric healthcare and baby products. Women may also experience gender-based violence on death row—such as coerced sexual interactions with male prison guards—and are more likely than their male counterparts to be abandoned by their families or communities.

It is for these reasons that the report argues that the use of the death penalty for women constitutes feminicide:

Based on what we know about the gendered impacts of the death penalty in law and practice, the illegitimacy of the death penalty as a form of punishment, and the gendered forms of structural violence women experience in various stages of the criminal justice process, we believe that the State’s execution of women amounts to unlawful killing tantamount to feminicide.

The report then tackles an adjacent issue: the misuse by States of capital rape laws. Of the 31 States that retain the death penalty for rape, many justify their use of the death penalty as a means of ‘protecting’ women against rape—often in response to public outcry over high profile rape cases. Criminological evidence, on the other hand, advocates the inverse. There is no evidence to suggest that the death penalty has a deterrent effect. To the contrary, the death penalty may deter victims from reporting rapes, due to the knowledge that their rapist—most often somebody known to them—may be executed. This silencing of victims exacerbates the stifling cultures of victim-blaming, stigmatisation, isolation, and reprisals to which victims are often subjected. Moreover, deficiencies in the criminal justice process—such as poor policing, use of torture to extract ‘confessions’, inadequate forensic medical services, and incompetent lawyering—may undermine the right to a fair trial and result in wrongful executions. And even if a criminal justice process were to be flawless, an execution ‘cannot heal the pain and anguish felt by victims’.

Justice for the victims cannot be achieved by putting perpetrators to death while allowing the patriarchal culture that perpetuates sexual violence to go unchallenged. […] Execution of rapists, rather than deterring rape, deters governments—and broader societies—from confronting and taking responsibility for rape culture.

Other forms of feminicide  

State-perpetrated femicide extends beyond the death penalty. For instance, in September 2022, Kurdish woman Mahsa Amini died under suspicious circumstances while in the custody of Iranian officials. While not feminicide per se, her death was ‘the latest in a long series of extreme violence against women and girls committed by the Iranian authorities’. Her death sparked ‘Women, Life, Freedom’ demonstrations across the country, with at least 476 people, including women and children, being killed by authorities during the protests. Likewise, during its rule over parts of Iraq and Syria, ISIL waged a violent campaign against Yazidi women. While ISIL also subjected men and boys to extreme violence, the violence perpetrated against women and girls was gender-based, a product of and used to reinforce female subjugation. For instance, executions of women by stoning were carried out in public ‘to instil fear among women for disobeying ISIL edicts’.

More often, however, the gender-motivated killing of women occurs in the private sphere. In 2021 alone, an estimated 81,100 women were intentionally killed, around 45,000 of whom by their intimate partners or family members. The majority of these killings, evidence would suggest, are gender motivated.

In some cases, these killings are enabled by the State. In many countries, the law carves a distinction between so-called ‘honour killings’ and murder, offering more lenient penalties where killings are committed with honourable motives. This serves as an official endorsement of the killing of women deemed to transgress social and cultural expectations: for example, their choice of clothing, marrying without family approval, seeking a divorce, extramarital sex, or being a victim of rape. In other countries, the legal restriction or outright criminalisation of abortion may compel women to undergo unsafe alternatives. Almost all maternal deaths attributable to unsafe abortion take place in countries where abortion is severely restricted in law or in practice, indicating State complicity in such deaths.

In other cases, responsibility may be attributed to States by virtue of their failure to prevent such violence. This is particularly so in contexts of systemic violence, with international human rights law obligating States to ‘take special measures of protection’ towards women whose lives are at risk because of pre-existing patterns of violence. The report identifies three such instances of feminicide. First, female genital mutilation (FGM)—a manifest violation of human rights to which an estimated 200 million girls and women have been subjected in some 31 countries—raises myriad health complications, including death from excessive bleeding and the death of FGM victims’ newborns during childbirth. Second, States have been identified as taking inadequate measures to combat dowry-related killings—that is, the killing of a woman over a dispute in the payment of money or gifts in the lead up to marriage. In India, a causal relationship has also been established between dowry and foeticide/infanticide, with approximately 2,000 unborn girls being killed every day through illegal abortions due to families wanting to avoid the burden of paying dowry. Finally, States are similarly taking insufficient measures to combat witchcraft-related killings: for example, in Papua New Guinea, only 115 of 15,000 alleged perpetrators of such homicides have been sentenced for their crimes, indicating a pattern of impunity.

This does not, however, mean that States should turn exclusively to the criminal law in an attempt to prevent feminicides. While impunity certainly enables violence, criminal accountability alone fails to consider the root causes of offending. States should instead take steps to address the harmful gender norms that underpin and perpetuate feminicide.

In sum, this report clearly demonstrates that femicide is the product of gendered forms of structural violence:

[W]hen a woman is killed because she is a woman, she is killed because of societal expectations and norms that define what it means to be a woman and how she is to be treated. In a society where institutions and structures produce and reinforce misogynistic and patriarchal views, beliefs, and norms, homicidal violence against women is a product of gendered structural violence.

Structural violence is borne of societal realities—that is, it is not naturally occurring—and is therefore preventable. To this end, the report argues that these structures (and the violence flowing therefrom) are sustained by the State, rendering the resulting killings of women and girls ‘State sanctioned’. This is reflected in the concept of ‘feminicide’, which the report reimagines to include all forms of femicide for which the State is responsible, whether perpetrated directly by the State or via proxy. This rearticulation of feminicide discourse to include State-perpetrated violence—and, in particular, the death penalty—reflects the functional equivalence of all forms of State-sanctioned femicide. By intertwining the concepts of structural violence and feminicide, this report allows for the convergence of the traditionally isolated ideas of capital punishment and femicide, in doing so revealing the true extent of State complicity in the gender-motivated killing of women and girls.

Christopher Alexander is a researcher at Eleos Justice.