Implicating the System

Judicial Discourses in the Sentencing of Indigenous Women

Elspeth Kaiser-Derrick

• Publisher: University of Manitoba Press
• Year: 2019
• ISBN:
  9780887555534
• Topic: Jura
• Subtopic: Strafmaß

Indigenous women continue to be overrepresented in Canadian prisons; research demonstrates how their overincarceration and often extensive experiences of victimization are interconnected with and through ongoing processes of colonization. Implicating the System: Judicial Discourses in the Sentencing of Indigenous Women explores how judges navigate these issues in sentencing by examining related discourses in selected judgments from a review of 175 decisions.

The feminist theory of the victimization-criminalization continuum informs Elspeth Kaiser-Derrick's work. She examines its overlap with the Gladue analysis, foregrounding decisions that effectively integrate gendered understandings of Indigenous women's victimization histories, and problematizing those with less contextualized reasoning. Ultimately, she contends that judicial use of the victimization-criminalization continuum deepens the Gladue analysis and augments its capacity to further its objectives of alternatives to incarceration.

Kaiser-Derrick discusses how judicial discourses about victimization intersect with those about rehabilitation and treatment, and suggests associated problems, particularly where prison is characterized as a place of healing. Finally, she shows how recent incursions into judicial discretion, through legislative changes to the conditional sentencing regime that restrict the availability of alternatives to incarceration, are particularly concerning for Indigenous women in the system.

CHAPTER 1

PATHWAYS THROUGH FEMINIST THEORIES, INTO THE SYSTEM

The Public Inquiry into the Administration of Justice and Aboriginal People of Manitoba (also called the Aboriginal Justice Inquiry), created to examine certain and systemic criminal justice failures toward Indigenous peoples in that province, produced a report by its co-commissioners in 1991 in which Justices Alvin C. Hamilton and C. Murray Sinclair indicate that the overrepresentation of Indigenous women in prison “can be traced, in part, to the victimization”1 they experience. Justices Hamilton and Sinclair suggest that of the Indigenous women incarcerated in a provincial prison within their purview, “the most significant factor that caused them to be there” seemed to be related to experiences of abuse, particularly childhood sexual abuse and intimate partner abuse, and that “many felt trapped in an impossible economic and social situation from which there was little chance of escape.”2 The co-commissioners further state that “none of the women we spoke to wanted to be involved in criminal activity, but they often believed it was necessary to do so,” and frequently in relation to caring for their children.3

There is ample research suggesting, in the words of Joycelyn Pollock and Sareta Davis, a “link between victimization and violent offending.”4 As Sugar and Fox comment about Indigenous women, “there is no accidental relationship between our convictions for violent offences, and our histories as victims,” as “for us, violence has begotten violence.”5 Although I focus on judicial understandings of the relationship between experiences of victimization and criminalization for the Indigenous women they sentence,6 it must be recognized that, as Tyagi notes, “women are involved in the justice system more as victims than offenders.”7 Additionally, as Lisa Muftic, Jeffrey Bouffard, and Leana Bouffard describe in an American study of intimate partner violence, the forms of violence women actively engage in often differ in significant ways from those of men in terms of “the seriousness, context, and outcomes of violence.”8 There is much support for Pollock and Davis’s proposition “that violence by women is very likely to take place in the domestic sphere.”9 Muftic, Bouffard, and Bouffard find that, “overall, research points to the potential conclusion that not only are women less likely to engage in severe physical violence but also the types of violence women resort to within an abusive intimate relationship are typically more self-defensive in nature.”10 Myrna S. Raeder writes, “While the continuum from victim to offender is most clearly evident in cases of women who kill their abusers, a much wider range of female crime has ties to domestic violence.”11 In the cases I analyzed in my study, women’s criminalization seems frequently connected to past experiences of victimization (including state-based victimization through processes of colonization), and often involves intimate partner violence or experiences related to this abuse. Moreover, violations of the law committed by women are often non-violent. Elizabeth Comack observes that women are “most likely to be charged with property-related crimes,”12 and that “the vast majority of offences committed by women are ‘poverty crimes’ that reflect the systemic inequality, discrimination, and marginalization emanating from their class/race/gender locations.”13 Justices Hamilton and Sinclair suggest that Indigenous women “are often going to jail for unpaid fines” without access to childcare support to enable their completion of various alternatives through “fine option programs.”14 The ways in which Indigenous women become criminalized must also be connected to processes of colonization.

Feminist discourses are significant to criminology because, as Raeder says, “it has not been fashionable to treat female offenders as victims, even if their crimes have a direct relationship to their violent victimization.”15 This is particularly true among groups such as “traditional victims’ advocates” who continue to “see a sharp break between victims and offenders.”16 In the American context, Raeder calls for the victims’ movement to include criminalized women within the purview of the victims’ community, programs, and advocacy,17 and urges the creation of “a fairer sentencing regime for offenders whose criminality is linked to the domestic violence they have suffered.”18 Canadian political and judicial institutions and actors should similarly develop more nuanced understandings of victimization and criminalization so that policy, law, and sentencing practices can better respond to the specificity (and diversity) among criminalized Indigenous women’s lives.

I draw from many feminist writers to provide the theoretical background that will undergird my discussion of the cases in subsequent chapters. Various feminist criminological theories describe how women’s victimization may contribute to their criminalization. Although I argue that these theories are substantially equivalent, I use the language of the victimization-criminalization continuum. There are criticisms of this theory, but these criticisms should subside when the theory is framed expansively. As Tuhiwai Smith writes, “The framing of an issue is about making decisions about its parameters, about what is in the foreground, what is in the background, and what shadings or complexities exist within the frame.”19 Criminalization and overincarceration of Indigenous peoples operate as reverberations of colonization (or, rather, are more appropriately regarded as ongoing—active, and more indirect—processes of colonization).

Blurred Pathways: Directions for the Victimization-Criminalization Continuum

Developed in the 1990s and onward,20 several feminist criminological theories about criminalized women share the basic premise that women’s experiences of violence and other forms of victimization should be understood as connected to how women enter the criminal justice system as accuseds.21 In her review of feminist criminology, Joanne Belknap finds that “perhaps the single most important contribution of feminist criminology is in the development of the ‘pathways’ perspective or approach,” which she defines as advancing the proposition “that traumas and victimizations are risk factors for offending,” noting the widespread research documenting “the extensive trauma and abuse histories”22 of women who have been sentenced. Meda Chesney-Lind also emphasizes the significance of this insight, identifying that feminist research has pointed to sexual and physical victimization, gender, and race as generating particular (and, I would add, interconnected) pathways leading to criminality and criminalization.23 These modes of pathway generation are accelerated in communities struggling with substance abuse and overincarceration.

Also responding to accumulated research indicating the prevalence of prior experiences of victimization for criminalized women,24 related streams of thought convey similar ideas to the pathways theory. For example, Amanda Burgess-Proctor writes that “feminist research identifies the concept of ‘blurred boundaries’ between women’s victimization and offending experiences.”25 According to Dana Britton, the “‘blurred boundaries’ thesis argues that women’s offending is intimately linked to their previous victimization.”26 This theory tries to “[disrupt] the dichotomy”27 between “victim” and “offender,” noting the instability between these ideas and identities because, as Elizabeth Comack states, “the boundaries between the two categories are more often than not blurred ones.”28 Similarly, Wendy Chan and Dorothy Chunn point to work that refers to “the multiple statuses” inherent in those who may be “simultaneously threatening and threatened,” posing risks and at risk, and how thoses multiple, shifting statuses “are connected or disconnected at a given moment,” which can be understood through contextualization of criminal acts and making visible experiences of victimization.29

While these theories convey the same concepts I use, I primarily draw from (and use the language of) the related feminist concept of the “victimization-criminalization continuum” to consider whether and to what extent such ideas are understood in judicial discourses about Indigenous women, and what this means for the sentencing of Indigenous women. Balfour discusses the initial relationship between early “standpoint theory and method in feminist criminology”30 and analyses that connected women’s law-breaking on a continuum between victimization and criminalization. Balfour finds that this early formulation suggested that “women’s lawbreaking behaviours (drinking and drugging, prostitution, and violence) were understood to be strategies to cope with the impact of abuse,” and “women’s victimization (sexual exploitation, domestic violence, rape) was viewed as a cause or pathway into violence, addiction, prostitution, or fraud.”31 This formulation has been criticized. However, notwithstanding problems various feminists have identified with this theory, it remains useful to understand how many women in the system may have come into heightened vulnerability to criminalization through their experiences of victimization. Balfour contends that the victimization-criminalization continuum “has not been adequately theorized or debated,”32 which leaves the possibility to expand it beyond problems associated with and identified within it. I use the victimization-criminalization continuum to signify that Indigenous women’s experiences of (personal, state-based, and related) victimization constrain their available options, which—particularly for already marginalized women—magnifies their vulnerability to criminalization.

For my purposes, I do not observe any substantial differe...