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 âcan be traced, in part, to the victimizationâ1 they experience. Justices Hamilton and Sinclair suggest that of the Indigenous women incarcerated in a provincial prison within their purview, âthe most significant factor that caused them to be thereâ seemed to be related to experiences of abuse, particularly childhood sexual abuse and intimate partner abuse, and that âmany felt trapped in an impossible economic and social situation from which there was little chance of escape.â2 The co-commissioners further state that ânone of the women we spoke to wanted to be involved in criminal activity, but they often believed it was necessary to do so,â 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 âlink between victimization and violent offending.â4 As Sugar and Fox comment about Indigenous women, âthere is no accidental relationship between our convictions for violent offences, and our histories as victims,â as âfor us, violence has begotten violence.â5 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, âwomen are involved in the justice system more as victims than offenders.â7 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 âthe seriousness, context, and outcomes of violence.â8 There is much support for Pollock and Davisâs proposition âthat violence by women is very likely to take place in the domestic sphere.â9 Muftic, Bouffard, and Bouffard find that, âoverall, 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.â10 Myrna S. Raeder writes, âWhile 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.â11 In the cases I analyzed in my study, womenâs 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 âmost likely to be charged with property-related crimes,â12 and that âthe vast majority of offences committed by women are âpoverty crimesâ that reflect the systemic inequality, discrimination, and marginalization emanating from their class/race/gender locations.â13 Justices Hamilton and Sinclair suggest that Indigenous women âare often going to jail for unpaid finesâ without access to childcare support to enable their completion of various alternatives through âfine option programs.â14 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, âit has not been fashionable to treat female offenders as victims, even if their crimes have a direct relationship to their violent victimization.â15 This is particularly true among groups such as âtraditional victimsâ advocatesâ who continue to âsee a sharp break between victims and offenders.â16 In the American context, Raeder calls for the victimsâ movement to include criminalized women within the purview of the victimsâ community, programs, and advocacy,17 and urges the creation of âa fairer sentencing regime for offenders whose criminality is linked to the domestic violence they have suffered.â18 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 womenâs 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 womenâs 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, âThe 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.â19 Criminalization and overincarceration of Indigenous peoples operate as reverberations of colonization (or, rather, are more appropriately regarded as ongoingâactive, and more indirectâprocesses 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 womenâs 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 âperhaps the single most important contribution of feminist criminology is in the development of the âpathwaysâ perspective or approach,â which she defines as advancing the proposition âthat traumas and victimizations are risk factors for offending,â noting the widespread research documenting âthe extensive trauma and abuse historiesâ22 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 âfeminist research identifies the concept of âblurred boundariesâ between womenâs victimization and offending experiences.â25 According to Dana Britton, the ââblurred boundariesâ thesis argues that womenâs offending is intimately linked to their previous victimization.â26 This theory tries to â[disrupt] the dichotomyâ27 between âvictimâ and âoffender,â noting the instability between these ideas and identities because, as Elizabeth Comack states, âthe boundaries between the two categories are more often than not blurred ones.â28 Similarly, Wendy Chan and Dorothy Chunn point to work that refers to âthe multiple statusesâ inherent in those who may be âsimultaneously threatening and threatened,â posing risks and at risk, and how thoses multiple, shifting statuses âare connected or disconnected at a given moment,â 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 âvictimization-criminalization continuumâ 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 âstandpoint theory and method in feminist criminologyâ30 and analyses that connected womenâs law-breaking on a continuum between victimization and criminalization. Balfour finds that this early formulation suggested that âwomenâs lawbreaking behaviours (drinking and drugging, prostitution, and violence) were understood to be strategies to cope with the impact of abuse,â and âwomenâs victimization (sexual exploitation, domestic violence, rape) was viewed as a cause or pathway into violence, addiction, prostitution, or fraud.â31 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 âhas not been adequately theorized or debated,â32 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 womenâs experiences of (personal, state-based, and related) victimization constrain their available options, whichâparticularly for already marginalized womenâmagnifies their vulnerability to criminalization.
For my purposes, I do not observe any substantial differe...