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Reflections on the Burqini and Punitiveness in Europe
A year ago, when I was a candidate to become President of the ESC, I wrote in this newsletter that one of my current research interests—and one of my concerns as a citizen and as a woman—was the increasing use of civil and administrative ordinances to criminalise statuses, behaviours, and situations in urban spaces. Recent efforts to forbid Muslim women to wear burqinis on European beaches vividly demonstrate the dangers and problems.
In recent years, many European countries have enacted laws and rules that authorise local institutions, usually—at least in continental Europe—mayors, to issue ordinances that prohibit and punish behaviours. The underlying assumptions are that the behaviours are potentially dangerous and ‘criminogenic’, even if not criminal in themselves. Examples include the well-known Anti-Social Behaviour Orders in England and Wales in the first decade of the 2000s; the Italian ‘ordinanze amministrative’, the Spanish ‘ordenanzas de civisme’, and the French ‘Arretés municipaux. These are not fundamentally different from ‘civility laws’ and banishment orders in US cities.
A recent special issue of the European Journal of Criminal Policy and Research on ‘The Renaissance of Administrative Orders and the Changing Face of Urban Social Control’, which Adam Crawford and I edited, puts these regulations into comparative perspective. The articles pay attention to inter-connections between different types of administrative orders and the challenges they collectively present to established theory, research, and practice. National case studies report on developments in England and Wales, France, Spain, Italy, Belgium, and the United States.
The articles demonstrate that these new administrative orders and ordinances in Europe and the United States often target women’s rights; stigmatise immigrants and undermine their chances for integration; and banish or in diverse ways make life harder for marginal social groups and young people. In many cases the orders substantially or potentially increase control and punitiveness in our societies and reinforce penal populism.
There is, of course, a great difference between Anglo-American laws and regulations and continental European administrative rules in terms of their legal nature, their enforcement, and their penal consequences. Despite these differences, however, these measures share some relevant common features.
First, they are part of a broader tendency to increase the regulation of social problems and various forms of disorder at the urban level by increasing state controls and increasing the possibility of criminal sanctions. Political discourses everywhere present the orders as more effective (and faster) alternatives to criminal procedures. In practice, the result, as many studies have shown, is to increase the role and the strength of traditional, authoritative criminal justice measures. The orders are often welcomed by the punitive popular culture that they embody and are strongly supported by governments and political cultures that, in many European countries, are shifting towards more punitive approaches.
Second, they are everywhere characterised by ‘legal hybridity’, which is described well by Katherine Beckett and Steve Herbert in their seminal 2010 book, Banished: The New Social Control in America. These orders are hybrids because they are mostly grounded in civil or administrative powers on their face, but their violation frequently results in criminal sanction (always in the Anglo-American systems, but only sometimes in the continental European systems). This mechanism is well described by Andrew Simester and Andreas von Hirsch as ‘two-step criminalization’.
These orders interact with criminal measures in different ways. They criminalise behaviors that were once considered only to be social problems or disorders, but that now are considered to be ‘undesirable’ features of urban life. In effect, they also re-criminalise behaviors, such as begging and prostitution, that had been de-criminalised in many countries. They increase the stop and search powers of the police, and they anticipate future criminalization through the criminal laws. In all these ways, the new orders do not result in fewer criminal justice measures, but in more criminal regulations and increased punitiveness.
Third, and not surprisingly, they suffer from an ‘expansion syndrome’ that broadens the ‘targets’ of these regulations in almost unlimited ways. The most common targets are, everywhere, the same people and the same situations: sex workers, homeless people, roma, immigrants, young people (and their ‘disturbing’ life-styles), children, and owners of animals.
Extreme examples have become famous and are a reason for criticism by the most liberal newspapers and commentators. These include prohibitions on wearing some kinds of dress—for example, short skirts or ‘weird’ dresses in some Italian mayors’ orders—or putting up posters about lost cats, feeding wild animals, playing football in the street, throwing rice during wedding ceremonies, or decorating gardens with gnomes. Not rarely, this expansion in targeting behaviours goes hand in hand with a shift in regulation from public spaces to private spheres.
This is the background of the ‘anti-burqini’ rules established last summer by some French mayors, with the support of prime minister Manuel Valls. The municipal orders that prohibited Muslim women from wearing the burqini on the French beaches attracted substantial attention and criticism, both within and outside of France. But it was not the first time that such orders were issued. It happened in Italy in 2008 when ‘anti-burqa’ and ‘anti-burqini’ ordinances were issued that constituted symbolic attacks on immigrants’ costumes, religious beliefs, and traditions.
In practice, enforcement of these orders has been very weak and they have been successfully challenged in administrative and criminal courts (as happened in France, finally, this summer). However, there are few doubts that they contribute to alarmist campaigns against ‘invasions’ by immigrants from other countries and that they reinforce and increase anti-foreigner sentiment in European societies. This is not exactly what European societies need in these difficult times.
The burqini cases – like the ‘anti-prostitution’ ordinances – do not raise issues only about legal rights and ethnicity. They are also on matters of gender in many different ways. They dictate what is ‘proper’ for a woman to wear and they establish the preeminence of the Western bikini over a different bathing costume. We know from research on similar orders in Italy that they result in Muslim women withdrawing even more from public spaces than they otherwise would. Anti-prostitution orders have similar perverse effects; they make prostitutes more invisible and more vulnerable, as fascinating ethnographic work in Spain by Carolina Villacampa demonstrates.
That’s why I said, at the beginning of this message, that I am concerned as a criminologist, as a European citizen, and as a woman.
I believe that criminologists who want to play a critical role in society should engage in research and activism on these issues and alert the scientific and political communities about the risks of over-reaching regulation of people’s behavior and ultimately of increasing criminalization. As a citizen and as a woman, I think we should be happy to see Muslim women bathing in the Mediterranean Sea, in whatever clothes they choose, rather than dying trying to cross it.
Rossella Selmini is Professor at the Deparment of Sociology, University of Minnesota, Minnesota, USA, and the President of the ESC.