Decriminalizing Migration Is A Gender Justice Issue

As military force at the U.S./Mexico border increases, so does the danger to migrants seeking asylum for rape, abuse, or even death.

This summer, the Supreme Court has ruled on two cases involving immigration, handing a win to DACA-qualifying undocumented youth one day, and ruling against the right of asylum seekers facing deportation to judicial review, the next. As many advocates have pointed out in light of both of these decisions, concessions from the Supreme Court will always leave immigrants who face the harshest oppression behind, until we broadly decriminalize migration.

Decriminalization of migration is as much a matter of immigrant justice as it is gender justice, and should be central to feminist and abolitionist movements alike. The militarization of borders and criminalization of undocumented folks directly contributes to alarming rates of gender violence targeting migrant women and girls. This takes place everywhere — en route to the border, in detention centers, in the workforce and at home — and leaves immigrant and undocumented victims with virtually no options available to seek safety or justice without punishment, criminalization, or deportation, all while the state engages in coordinated efforts to erase this violence.

It’s estimated that six in every 10 women and girls are raped and as many as 80 percent experience some form of sexual assault en route to the border — many of them are already escaping domestic violence and human trafficking from their home countries. The militarization of the border plays a direct role in creating the dangerous conditions migrants face to come to the U.S., in which rape is so prevalent that one border patrol official spoke to the Associated Press in 2018 about the increasingly common phenomenon of migrant girls as young as 12 being put on birth control pills, “because they know getting violated is part of the journey.”

The reproductive coercion of migrant women and girls doesn’t stop when they reach the border. Under the Trump administration, there has been a dangerous trend of immigration officials denying detained migrant women and minors abortion care for unwanted pregnancies, in some cases conceived by rape. Internal emails within the Office of Refugee Resettlement from 2017 showed Trump officials repeatedly banned undocumented teens from leaving detainment centers for abortions and even attempted to stop one migrant woman’s medical abortion which was already underway.

The apparent ban on migrant women and girls’ access to abortion arguably comprises a form of sexual violence in itself as a fundamental invasion of their bodies, rendering the human right to bodily autonomy contingent on citizenship, as Trump’s own legal team put forward in its defense of the ban. These acts by the administration reflect an age-old, militaristic strategy of dominance and dehumanization of “foreign” and “enemy” women through violent control of their bodies.

The militarization of the border has also led to thousands of cases of sexual abuse, especially targeting migrant youth and girls, at detention centers, few of which are investigated. The Intercept reported in 2018 that of the 1,224 sexual abuse complaints filed at detainment centers between 2010 and 2017, only 43 led to investigations. According to a report by the Department of Justice released in 2019, in four years between 2014 and 2018, the federal government received more than 4,500 complaints about sexual abuse of immigrant children held at government-funded detention facilities. These complaints saw a pronounced increase while the Trump administration’s migrant family separation policy was underway. Of these 4,556 cases, just 1,303 “deemed the most serious” were referred to the Justice Department, the New York Times reported.

For undocumented women in the U.S. outside of detainment centers, human rights groups have reported for years on the jarringly high rates of sexual abuse migrant women, who are predominantly domestic and farm workers, face in the workplace. Yet, there are no concrete numbers and statistics due to significant barriers to reach migrant women workers, which include language barriers and fear of being exposed, criminalized and deported for speaking up in any way.

According to a 2012 Human Rights Watch report, the majority of interviewed women farmworkers said they had experienced sexual harassment and violence on the job, but “they had not reported these or other workplace abuses, fearing reprisals.” Some of the anecdotes in the report include a woman in California whose supervisor at a lettuce company raped her and later told her she “should remember it’s because of him that [she has] this job.” Another farmworker in New York told Human Rights Watch her supervisor repeatedly groped her and other women, and if they resisted, he threatened to call immigration or fire them.

It’s estimated one in four women has experienced sexual assault, but between 67 and 85 percent are unreported. According to a 2015 report by American University’s National Immigrant Women’s Advocacy (NIWA), immigrant women are even less likely to report rapes and assaults for obvious reasons. Not only do they face risk of detainment and deportation, but they could also lose their jobs and their only means of livelihood for themselves and their families, or be retaliated against and reported by abusive employers, who have more credibility in the eyes of law enforcement.

NIWA’s research found one of the most significant factors impacting migrant women’s decision to report abuse is their immigration status, as well as language barriers that could impede their communication with law enforcement. Women of color and immigrant women are often treated with greater distrust and hostility by law enforcement, and face greater risk of criminalization, incarceration, and punishment. Many victims of abuse are also often distrustful of police officers, and with good reason: at least 40 percent of officers are known domestic abusers, and there is a long history of officers abusing their state power to assault, harass, and stalk abuse victims — and especially women of color — and then engage in cover-ups.

As Human Rights Watch notes, the only protection against abuse afforded to migrant and undocumented women is a component of the Violence Against Women Act (VAWA), which offers temporary legal status via the U Visa to victims — but only to “victims of certain serious crimes if they have suffered substantial physical or mental abuse,” and only “if they cooperate with the investigation.” Yet, this protection is constantly under threat by Republican attempts to derail VAWA every few years. VAWA itself can also endanger migrant women, due to its reliance on law enforcement and required arrest mandate. Many undocumented and migrant women will always distrust police, and know being involved in the criminal justice system in any capacity can put them or their families at risk of surveillance and deportation.

In the absence of meaningful legal protections of migrant women and girls against rampant sexual abuse, undocumented workers and families are organizing to protect themselves. From undocumented mutual aid funds that are drawing greater attention and support than ever during the COVID-19 pandemic, to boycotts of corporations that exploit their farm labor and allow rampant sexual assaults, immigrant-led advocacy efforts have been crucial to providing the material supports migrant women workers need to be safe.

However, until we see a massive overhaul of the punitive and highly militarized immigration system, and namely, the decriminalization of migration, the crisis of rampant sexual violence targeting immigrant and undocumented women will persist — and the state will continue to not only cover up and erase this crisis, but actively punish the most vulnerable victims for seeking safety and dignity.