By Cristina Cabrera-Ayers (they/them)
Content warning: mentions of sexual assault; femicides; violence against women; violence against queer people; violence against transgender people; racist violence; police brutality
Terms: defining language and inclusivity in discussions of gender-based violence.
Gender-based violence is a term that encompasses many crimes, but with the central motivation of causing harm towards someone because of their gender identity. In almost all cases, this is violence against women, committed by men. ‘Violence’ may include a number of discrete crimes, for example, sexual assault and stalking, or wider cultural practices, such as female genital mutilation (or ‘female circumcision’) and child-brides—UN Women’s webpage identities this violence as a symptom of the imbalanced power dynamic produced by patriarchal societies. In a society where male domination is encouraged and encoded into every social situation, it follows that violence would be used as a form of control and securing this domination.
Talking about gender-based violence without using gender essentialist language is difficult. I say this a non-binary person, struggling to restructure the language I found in my research to reflect that gender-based violence doesn’t affect just cisgender women.
Firstly, I would argue the definition of gender-based violence could include ‘assumed gender identity’; for example, a transgender man may be attacked by a perpetrator who believes him to be a woman. Likewise, gender diverse people who present feminine or are regularly perceived as female may also be the targets of gender-based violence.
It is difficult to delineate exactly when a crime moves from gender-based over to something based in queerphobia and/or transphobia. If a perpetrator only identifies their target as a trans-woman in the middle of attacking her, does the crime then become a transphobic attack as well as a crime against a woman? When does a sex-crime move into the territory of a hate-crime?
Diverse, but united in that we are the major targets for gender-based violence.
There are certainly instances of gender-based violence that are also fuelled by queerphobia: assaults by men on lesbian and bisexual women can be read as an attempt to re-align the women to the ‘correct’ performance of sexuality-being available only to men. However, this doesn’t mean that the experiences of (cisgender) lesbians and bisexuals should necessarily be equated to those of trans and GNC (Gender Non Conforming) people. Rather, the uniting factor across the minority groups affected by gender-based violence is that of vulnerability.
And let’s keep in mind, vulnerability is not defined only by one’s assumed gender or gender expression. Gender is only one facet of the identity that may be marginalised; ethnicity, religion, physical and mental ability, linguistic background, and the list goes on. I could spend this entire article talking about how the intersections of gender with other minority-identities combines to create ‘vulnerability’, and how that might affect a person in their context.
However, that would not do justice to the true complexity and nuance of these intersections of race, class, presentation, and gender identity. For the sake of simplicity, I will be referring to ‘women’ as the main victims of gender-based violence. This term is inclusive of cis and trans women, as well as people whose genders are assumed when they are attacked.
Pepper spray and its standing in Australia
It’s confusing and incredibly varied, is what it is. You will see there are a few states that permit the use of pepper spray, but with those, there are a lot of time-consuming hoops to jump through.
It is especially difficult to speak to gender-based violence in the context of self-defence, because relatively little research has been done on the subject. Most of what I found had to do with consumer research by companies that sold pepper spray for commercial use, or in the context of policing and police brutality. The effect that pepper spray has in reducing instances of assault and other forms of gender-based violence is also under-researched, which speaks to the wider problem of a lack of funding and interest to engage with gender-based violence. Every bit of it is based in either Europe or the USA, so God only knows how these statistics might change in the Australian context.
‘Pepper spray’ is often used interchangeably with the term ‘Mace’, which is in fact the name of another popular brand of self-defence spray made with a different active ingredient. Pepper spray was created in 1965 specifically for self-defence by an American couple after a (female) colleague was robbed, and uses the oils extracted from hot chili peppers. When sprayed into the sinuses and eyes, it can cause temporary blindness, intense irritation, and difficulty breathing. It was created in 1973 for self-defence against dangerous wildlife, and became a tool of ‘riot control’ during the 1990s in North American police departments. Pepper spray is also popular on the commercial market as a simple tool for self-defence, but with a troubled relationship to the law.
The legality of pepper spray in Australia depends on your state. In those states where it is legal, say, NSW and WA, there are strict conditions placed upon its ownership, and often require petitioning to a court to be able to carry it.
As you can see, even where pepper spray can be legal to use, it is a very restricted substance and difficult to gain access to. Four states have provisions that allow people to petition to carry pepper spray on ‘reasonable grounds’ or if an individual is ‘vulnerable’ in some way, but these grounds are not necessarily defined in legislation. The problem being, it is impossible to predict when you are going to be attacked in public.
You might argue it is easy to identify the kinds of settings in which a woman should carry a self-defence tool – a situation that law enforcement would agree is dangerous, if she is asked to justify herself.
While the popular concept of a ‘dangerous situation’ for a woman might be a dark alleyway, in truth, many situations have the potential to become dangerous for women because predatory men do not confine themselves to these popular tropes. Legislation probably wouldn’t like me to walk into a Coles with my pepper spray, but I have been followed around a shop before, in broad daylight, in a crowded area.
SA’s approach is also troubling: the definition of ‘vulnerability’ includes people who have previously survived assaults and attacks. The implication being that a woman should wait until she has already been assaulted once to be permitted self-defence tools. Also, the way in which legislation permits people to gain access to pepper spray assumes that most people would have the time and resources to go to court and make this petition. Interacting with the courts is a real hassle, especially when you cannot be sure that your ‘reasonable grounds’ or type of ‘vulnerability’ will satisfy the courts.
And yet, the restrictions on carrying pepper-spray in public are so vague and unclear, it is difficult to think of a situation outside of the ‘dangerous setting’ trope when a woman could carry it without punishment. And these punishments are enforced sometimes: as recently as 2014, a pregnant WA woman was fined for carrying pepper-spray after her apartment was burglarised. Being pregnant did not constitute reasonable grounds; nor did the home invasion, perhaps because it was not a direct assault on her body. Again, it seemed that the authorities would have preferred that the woman wait to be directly attacked, while pregnant, to justify carrying a self-defence weapon.
Returning to the issue of getting a court’s permission, there are plenty of people in Australia who require self-defence weapons and won’t be able to get to the courts. People who live in remote and rural communities might not be able to travel that distance; people whose legal statuses in Australia are somewhat challenged, for example, as refugees or recent immigrants. Finally, what if you are vulnerable and for whatever reason, the court simply will not grant you permission to use pepper spray? What then?
Basically, if you don’t live in an area where you might be able to get pepper spray, and if you don’t satisfy the nebulous conditions to be permitted to (sometimes) carry it, the Australian government’s attitude towards women’s self-defence is “Good luck, ladies”.
For a model of how pepper-spray could be better introduced and managed in Australia, I point to an example out of Latin America. The issue of women’s health and safety is constantly in the hispanohablante headlines as rates of femicides and domestic abuse continue to climb in almost every country and province. One country, Panama, is trying out a new initiative to protect women who are vulnerable to intimate partner violence. In May of this year, Panama’s National Institute for Women identified a group of women who had been “threatened with death” by a “partner or ex-partner”, providing some 2,000 Panamanians with pepper spray. These women were also given safety and training classes to ensure they’d know how to use it properly.
Panama is using a targeted group, here, in the same way that SA’s legislation makes provisions for previous victims of gender-based violence to carry sprays. However, Panama takes a step further by encouraging women to take up self-defence and ensuring they are trained to use the tools properly. In this case, a government agency is taking direct responsibility for providing a vulnerable group with the means to defend themselves against a common phenomenon, and to do so effectively.
What are the risks in introducing pepper spray?
There are, of course, going to be broader social consequences any time you introduce an object designed to cause harm to the consumer market. Let’s go over a few of the counter-arguments often raised in the debate over legalising pepper-spray, or reforming the restrictions on its use.
1. Fatalities?
Pepper spray kills people! Except it usually doesn’t, and when someone dies soon after being pepper-sprayed, there’s usually something else going on.
Most of the research around the efficacy and danger of pepper-spray happens in the context of investigating fatalities and injuries, which have occurred within an encounter with police. Pepper-spray can exacerbate the danger of other police practices, such as ground-holds and other positions that may cause something called ‘positional asphyxiation’. Essentially, police put someone into a position that restricts breathing-the way George Floyd was murdered in 2020. If someone is already in significant distress from inhaling pepper-spray and then put into a ground-hold that further restricts breathing, the pepper-spray can’t really be blamed for casualties. The fault is with the brutality in policing practices.
2. Consumers might not know how to use it
One of the problems with keeping pepper-spray illegal or in a troubled legal position, is that educational resources around it can be scant. A consumer report based out of America found that the average consumer was not aware of how to properly deploy their pepper-spray: that spray should be aimed to cover the attacker’s whole face, for maximum effect, rather than just the eyes. (2020, Kumar & Strybel)
In Australia, the grey area around pepper-spray use in some states means that training resources can be difficult to access. Buyers may not be aware of best use practices, and therefore might not find pepper-spray an effective weapon if they do have to use it in self-defence. Those who access pepper-spray illegally or without court permission are also less likely to have sought out proper training, for fear of getting caught.
Again, this is a problem that could be addressed by reforming the legislation around it: make it mandatory to have education on the product when it is purchased. Make sure that people know how to safely use what they are buying.
On the other hand, this is a high expectation of the buyer’s ability to commit time to training. Not all people who want pepper-spray will have the time to take off work and family responsibilities; similarly, this reform assumes that these training classes will be available even in rural and remote areas, which tend to have less resources than urban areas.
3. Women can perpetrate different kinds of violence
Self-defence tools are not always going to be used for their intended purpose. Women are perpetrators of violence too: the violence is generally racial and prejudicial in some other way. For example, this June in New York, four Asian women were attacked with pepper-spray by a white woman using racist language and citing a conspiracy about Asian immigration being responsible for the spread of Covid-19. What if she attacked four men and defended herself by claiming she felt threatened by the men?
Similarly, what if racist women carry out assaults with pepper-spray against men of colour and argue it was in self-defence? There is a long history of white women making false claims of assault against men of colour that result in those men being killed or beaten; white women are perpetrators of racist harassment, and are sometimes bolder about it in public because they know men of colour are generally treated as aggressors. How would the real assaults be separated from the fabricated ones?
Again, this is a difficult thing to regulate. If self-defence tools are made more accessible, it stands to reason that one of these women may use pepper-spray to make her story more believable. If self-defence tools are made more accessible, what if a perpetrator of gender-based violence uses pepper-spray against their victims? What kind of regulations and restrictions should be put in place to prevent predators from taking these steps? Although men are not often victims of gender-based violence, there are other types of violence men are vulnerable to: should they be prevented from having self-defence tools on the basis that they might perpetrate violence against women?
How do we address this?
A lot of these problems don’t arise specifically from the introduction of self-defence tools to the consumer market, but problems of equity and prejudice. For example, the lack of resources to get training and purchasing pepper-spray could be resolved by following a program similar to Panama’s, wherein the government provides the tools and resources to an identified group. While this does rely upon victims of violence being able to self-identify, it is a better use of resources than what is currently in place: a lengthy court proceeding with an uncertain outcome.
The use of pepper-spray as a tool for racist attacks is more difficult to address. Setting up clear boundaries and punishments for those women who are caught using their pepper-spray for racist assaults might not necessarily work as deterrents. The infrastructure of the justice system is inherently racist, more likely to falsely convict people of colour or dismiss their complaints-which is part of the reason white women feel empowered to make false accusations. Again, ultimate resolution to this problem is equity, reform of the justice system to dismantle systemic racism, and make the justice system useful to people of colour in defence of their rights.
As to the shorter-term solutions for protecting men of colour from assaults and false accusations, making training and pepper-spray accessible throughout Australia and so on, I do not have an easy answer. The answer will lie in conversation and engagement with all of affected stakeholders, and that work has yet to be done because of the aforementioned lack of funding or interest in engaging with gender-based violence.
The unspoken fourth objection: what if women actually spray men?
There is a reason pepper-spray and other issues of women’s self-defence have so little research around them. I am sure everybody knows what I’m going to say, but let’s say it anyway.
We live in a patriarchal society! And the most basic tenet of the patriarchy declares that men are in charge.
Men’s desires are always the most important and first to be filled; men’s opinions are the most important and should be heard first; men are in charge in all situations and should be permitted to subordinate women to them in any way they desire. So when women find a tool to subvert that, it naturally causes some disquiet. If you, the reader, the individual, are thinking “not with me!” because you’re a woman (or get read as a woman), or a male ally, then good for you.
Many would be delighted at the thought that their daughters, sisters, wives etc. could incapacitate the next guy who tries to follow her home. But the problem is, again, structural, rather than a problem that can be blamed on the individual. You, Dear Reader, may want your wife to be able to mace predatory men, but then you are probably not the one maintaining patriarchal sexism in literally every piece of social infrastructure within society. This is a broader attitude entrenched by the actions and prejudices of many people in positions of influence and power, men and women alike.
The patriarchy characterises women as irrational and emotional, so much so that previous instances of women’s self-defence have caused ‘panics’. At the beginning of the 20th century, for example, there was the hatpin panic; a typical part of a middle-class woman’s costume in those days included a pin to keep the hat attached. Women also occasionally used those pins to stab men who were groping or harassing them in public. This period even saw pushes for banning hatpins from the public space entirely because so many men were convinced the scary, hysterical women were going to take their eyes out for no reason.
Beyond that, then and now, some powerful individuals are afraid of women having self-defence not just because of the subversive implications, but because they might get pepper sprayed the next time they corner a secretary in a backroom. Some men are complaining because they know they will have to change patterns of behaviour if they do not want to get pepper sprayed.
Overall, the problems I have discussed with introducing pepper-spray are solvable. They will require a lot of careful research and input from stakeholders to ensure that people are being taken care of. Women who have survived assaults should have input into potential reforms, for example, advising the kind of restrictive conditions that can be placed on pepper-spray, while still making it accessible. Men of colour who have survived attacks or false accusations from women should be consulted on best practices of investigation of these claims, and what kind of fines or deterrents might be effective.
What should not happen is the preservation of what we have now: a “good luck ladies” kind of situation where a woman is more likely to be penalised for carrying pepper-spray than she is to even be allowed to purchase it legally. Because inaction in the face of gender-based violence will only ensure it remains a threat, and, indeed, worsens over time.
Reference/ resource list:
https://legislation.nt.gov.au/en/Legislation/WEAPONS-CONTROL-ACT-2001
https://www.ojp.gov/pdffiles1/nij/195739.pdf
https://www.sydneycriminallawyers.com.au/blog/should-pepper-spray-be-legalised-in-australia/
https://www.ccc.qld.gov.au/publications/oc-spray-oleoresin-capsicum-oc-spray-use-queensland-police
https://www.criminaldefencelawyers.com.au/blog/is-pepper-spray-legal-in-australia/
https://blazetrends.com/women-will-have-pepper-spray-against-sexist-violence-in-panama/