The urgent need to feminise Legal Translation

In our patriarchal society, law and language go hand in hand in a dangerous alliance. After all, the two enshrine power. This type of society seeks to grant that power to men for their exclusive use. Historically, laws have, by and large, been proposed, drafted and enacted by men. Women and non-binary genders simply don’t enter into the equation**.

 “A patriarchal society is made up of a male-dominated power structures which are found throughout a society.”

When we look closely at a legal text, all too often the language we come across is inaccessible for most people. Complicated Latin phrases, long winded clauses and armies of sub-clauses only add to the frustration of reading and translating such texts. As translators, when faced with these complications, we may sometimes ask ourselves if we’re actually translating anything at all.

Unfortunately for us, the unwritten golden mantra of legal translation is: don’t get inventive or florid, simply be ‘faithful’. Whilst there isn’t a great deal we can do about the legal text’s inaccessibility for some readers, we, as translators, can indeed feminise or queer the terms used in the text. By doing so, we are using translation as a tool for equality as well as a means of challenging patriarchal power structures.   

Argentina and Abortion:

Women’s access to health, particularly reproductive rights, is limited or simply non-existent in many countries. Abortion access has been a key topic within feminist circles since the late 1960s as women fought to take back ownership of their own bodies. Vicious battles were fought in courts, in clinics, in lecture halls, in churches and in print. Sadly this debate turned sour as medical professionals were brutally murdered by anti-choice activists. In the 1990s the anti-choice lobby in the USA began to talk about “Foetal Rights” – thus further hindering women’s access to this basic health service.

The laws and regulations which limit abortion are rarely ideologically-friendly for the feminist translator. Argentina’s Penal Code, which limits abortion access, is an example I would like to highlight.

In 1994 the Argentine Penal Code underwent reform and the Pact of San José was added, meaning that, as far as Argentine law is concerned, life begins “from the moment of conception”.  It was only in 2012 that the Argentine Supreme Court ruled that abortions may be carried out in cases of rape or when there is a threat to the woman’s life.

Here’s a section from the original Spanish language version and to the right is the translation provided by Americans United for Life (AUL) in their document, “Defending the HumanRight to Life in Latin America series”:

Art.86.- El aborto practicado por un médico diplomado con el consentimiento de la mujer encinta, no es punible:      1)   si se ha hecho con el fin de evitar un peligro para la vida o la salud de la madre y si este peligro no puede ser evitado por otros medios; 2) si el embarazo proviene de una violación o de un atentado al pudor cometido sobre una mujer idiota o demente. En este caso, el consentimiento de su representante legal deberá ser requerido para el aborto.

Section 86 - establishes that any abortion performed by a  qualified medical doctor with the pregnant woman’s  consent is non–punishable: 1) when performed to avoid a threat to the mother’s life or health and when this threat cannot be avoided by any other means. 2) when the pregnancy is a consequence of rape or of sexual  assault against an idiotic or insane woman. In this case, the legal representative’s consent to perform the abortion is required.

As you can see in the original, patriarchal language is being used. We can all see how “una mujer idiota o demente” is not acceptable language. So, is “an idiotic or insane woman” an acceptable translation? No, not at all. This is able-ist language, limiting and degrading women with mental health problems. We can be quite sure that nowhere else in the Penal Code will we find a man being referred to as “idiotic or insane”.

Translators may well be tempted to expose the patriarchal language used by carrying it over in the translation – but let’s be quite clear, this is by no means endearing language, nor should it be used in this day and age.  Here translators must be reminded of their own agency within the text and all too often, that can involve reflecting on one’s morals, ideology and personal opinions.

 Though it is not the norm to wander from the source text in legal translation, if the translator decides to be ‘faithful’ they are ultimately reinforcing stigmatisation and negative feelings towards the mentally ill. They are also, directly and indirectly, putting women down, thus enabling the patriarchal system. Translators can be ‘unfaithful’ through applying Von Flotow’s (1991) technique of “hijacking” and then recasting the language, using a more politically correct term.

When translators are taught their craft, faithfulness to the text is held as sacred and essential to the process. In legal translation, that drive to be ‘faithful’ is even more intense. We, as translators, need to challenge that as this way of thinking reduces us to mere machines with little or no moral backbone. It destroys our capacity for independent thought and robs us of our agency. Feminist translation theorists understand this emergency. Sherry Simon strongly advocates the need for a “renewed sense of agency in translation” in what she sees as the “violence of appropriation”.

Dr Nuria Brufau-Alvira, in her talk on Feminist Translationin the 21st Century, has spoken out about the lack of interdisciplinary awareness within Feminist circles - as in Brufau-Alvira’s example, it could well be that Gender Studies students are not aware of Feminist Translators. Feminist legal scholars have been working hard to have an impact on the law, inside Universities and in law firms. If we, as feminist and queer translators, do not begin to criticise and re-invent patriarchal patterns in language, then we are making the task even more difficult for feminist legal scholars. By reaching out to each other, through collaboration and through understanding the need for feminist legal translation, we can have a much more profound impact on the law and the language within legal texts.

**It would be fair to add that some men are also victims of this structural inequality, when their “masculinity” is challenged.

We hope to continue exploring this avenue of intersections, where patriarchal laws and power structures meet feminist and queer translation theories. If you have any examples or experiences which you would like to share, please leave a comment below!