11. Feminist Criminology
11.7 Treatment in the Criminal Justice System
Dr. Rochelle Stevenson; Dr. Jennifer Kusz; Dr. Tara Lyons; and Dr. Sheri Fabian
As our discussion of victims and offenders highlights, feminist criminology examines the different pathways into offending as well as myriad ways in which women are uniquely victimised. From the above, you should have some understanding of the role of gender in criminology and within the Canadian criminal justice system. At the same time, we must understand the intersectionality of gender with other forms of identity. Early universal notions of women’s lives failed to account for the unique experiences of women, and other aspects of women’s identities such as race, Indigeneity, ethnicity, socio-economic status, and sexualities.
The above-noted “add women and stir model” sometimes used to explain female criminal offending and victimisation assumes that gender has no role in the treatment of women in the criminal justice system (i.e., explanations for male criminality can be applied to women), while other approaches either blame women for their circumstances, openly see women as less than men, or ignore gender completely. For example, rape culture “encourages male sexual aggression and supports violence against women in the form of words, jokes, advertising, media, objectification, and gendered norms” (Tavcer et al., 2018, p. 196). When such attitudes are prevalent, sexual assault is commonly linked to rape myths that suggest women who dress provocatively, drink or use drugs, or who walk alone are somehow responsible for the assault. Rape culture shifts the blame to women, rather than focusing on the problem of glamorised and normalised male violence. Sexual assault prevention programs often focus on the behaviours of women and how to avoid an assault, rather than on campaigns directed at men and what they can do to ensure they do not sexually assault someone. Moreover, these attitudes often result in the double victimisation of women: first by the man who assaulted her, and then by the criminal justice system in which she is re-traumatised, blamed for the assault, and has her character questioned. While rape shield laws are supposed to protect women, they fail women far too often (see Sexual Assault Criminal Law, Rape Shield, Evidence, and Sentencing in Canada).
Women are also victimized when they are incarcerated. As noted above, incarcerated women have disproportionate histories of physical and psychological trauma. This reality means that they are not necessarily incarcerated for their behaviour; instead, they are incarcerated for responses to their histories of trauma (Comack & Balfour, 2014). Similarly, trauma can be associated with mental illness, and the treatment of mentally ill prisoners in a corrections setting is problematic at best, and harmful at worst. Most correctional programs are designed for men and fail to draw on the strengths of women, instead focusing on their deficiencies (Folsom, 2018; Gobeil et al., 2016). In addition, most programs do not address gender diversity. For example, anger management programs address an identified problem or deficit and follow the same format for men and women. The alternative is to apply a strength-based approach, focusing for example on positive personal factors such as faith or morality (Ronel & Elisha, 2011, as cited in Kewley, 2017), and to use those factors as a foundation to positively move forward.
Sometimes it seems that efforts to advance gender rights and the treatment of women within the criminal justice system do not have an immediate impact, but it is important to note some successes. For example, feminists successfully advocated for the 1983 updates to Canada’s responses to intimate partner violence. Such changes included redefining sexual assault to include assaults perpetrated by husbands (prior to this, sexual assault within marriage was not a criminal offence). Advocates had long argued that the challenges faced by women leaving violent relationships were a social problem that needed consistent responses by law enforcement and the courts. These responses must also take into account the variation in impacts on racialised women.
Today our responses are much more likely to be women-centred and less likely to blame women. While woman-blaming does still happen, the responses to such attitudes (as noted above with the response to Alberta judge Robin Camp) indicate the increasing social pushback and demands for change. We continue to see laws evolve and change to better address women’s needs. While we do not suggest gendered inequality has ended, we must acknowledge that progress has been made, albeit too slowly for many of us (see Canada’s Women Foundation). It is important to remember that gender equality is situated within colonialism, racism, and capitalism and therefore not all women have received the same benefits, as illustrated above with the experiences of racialised and sexualised populations such as Indigenous women or transgender or bisexual women.
CASE STUDY: Canada’s Missing and Murdered Indigenous Women and Girls (MMIWG)
As demonstrated throughout this chapter, feminist criminology highlights the different pathways into offending as well as myriad ways in which women are uniquely victimized. This approach also calls attention to the intersectionality of gender with other forms of identity. The case of murdered and missing Indigenous women offers one example of this intersectionality reflected in the criminal justice system.Red Dresses on Bare Trees is an edited collection that brought together “authors with good minds, hearts and spirits (fuelled by good intentions)” (Hankard & Dillen, 2021, p. v) to address through stories and reflections the challenging human rights violations of Indigenous women and of the Missing and Murdered Indigenous Women and Girls that have plagued colonial Canada for too many decades (The text provides reflections of those affected by the pain of MMIWG and honours their voices and their stories. See the stories at RED DRESSES on BARE TREES: Stories and Reflections on Missing and Murdered Indigenous Women and Girls). In “Decolonizing the violence against Indigenous women,” Jacobs (2017) argues that decolonization must include a goal of returning safety and respect to Indigenous peoples and especially Indigenous women and girls and the stolen lands settlers occupy (p. 51). Many provincial and national inquiries have produced reports that examine the circumstances of Canada’s Indigenous Peoples that are the direct consequence of its colonial history and the intergenerational trauma associated with Canada’s past and present: a history built on Eurocentric norms and systems; the removal of Indigenous children from their families, placing them in residential schools, often fraught with physical, sexual, and psychological abuses; and the Sixties Scoop during which Indigenous children were placed in foster care. But make no mistake: the colonial oppression of, and violence against, Indigenous peoples is ever present in Canada today.
The first public inquiry into Canada’s treatment of its Indigenous peoples followed the Oka Crisis in the summer of 1990, which drew international attention and forced the federal government to seriously consider its historical and ongoing treatment of its First Peoples (The Oka Crisis, as it came to be known, was a dispute over a golf course on the lands and burial grounds of the Kanien’kéhaka (Mohawk) in Québec which involved heavy military enforcement. The National Film Board of Canada produced the award winning documentary of the 78 day standoff that resulted in two fatalities: Kanehsatake: 270 Years of Resistance. See Kanehsatake: 270 Years of Resistance by Alanis Obomsawin). Although the Royal Commission on Aboriginal Peoples’ (RCAP) report (Hamilton & Sinclair, 1996) did not focus specifically on Indigenous women and girls, it provides a detailed history of the colonial practices that harmed Indigenous peoples for centuries with a focus on including Indigenous voices (Hamilton & Sinclair, 1996). At the same time, the Native Women’s Association of Canada (NWAC) began demanding action to address the continued news of Indigenous women and girls across Canada who have gone missing or have been found murdered (Tavcer, 2018). According to the final report of the National Inquiry on Missing and Murdered Indigenous Women and Girls (MMIWG): Reclaiming Power and Place (2019) (established as one of the Calls to Action by the Truth and Reconciliation Commission. For more information about the inquiry see the National Inquiry into Missing and Murdered Indigenous Women and Girls; check out the Timeline of Key Milestones), the Royal Canadian Mounted Police (RCMP) now confirm 1,181 cases of “police-recorded incidents of Aboriginal female homicides and unresolved missing Aboriginal females” between 1980 and 2012. Between 1996 and 2019, many other commissions and inquiries addressing MMIWG have issued similar reports that highlight the dangers of being an Indigenous woman or girl in Canada (for example, see Report of the Royal Commission on Aboriginal Peoples; & The Aboriginal Justice Implementation Commission). Several of the inquiries have focussed on British Columbia because it has the highest proportion of MMIWG. The Highway of Tears—a 725 km corridor of highway stretching from Prince Rupert to Prince George, BC—is where at least 30 Indigenous women and girls have gone missing since 1974 (see the Highway of Tears). BC is also the site of serial killer Robert Pickton’s farm where DNA from 33 female victims was found, 12 of whom were Indigenous. As this case study indicates, we are long past inquiries and commissions to address the ongoing oppression of, and systemic racism against, Canada’s Indigenous peoples. It is time for meaningful action (for examples, see the BC Society of Transition Houses; The Government of Canada and Specialized Courts ). We continue to see the overrepresentation of Indigenous peoples—women in particular—in all aspects of the Canadian criminal justice system, as both offenders and victims.
In 1996, the RCAP asked “Why in a society where justice is supposed to be blind are the inmates of our prisons selected so overwhelmingly from a single ethnic group?” (Hamilton & Sinclair, 1996). How is that we continue to ask the same question today?