Abused Women and Legal Discourse: The Exclusionary Power of Legal Method

Canadian Journal of Law and Society

Volumn 11, Issue 1, 1996, Pages 125-139

  Beaman Hall, Lori ^a  

^a UNIVERSITY OF NEW BRUNSWICK   (Canada)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 85010179886     PISSN: 08293201     EISSN: 19110227     Source Type: Journal    
DOI: 10.1017/S0829320100004610     Document Type: Article

References (69)

1. See, for example, Katharine T. Bartlett, “Feminist Legal Methods” (1990) 103 Harvard Law Review 829
2. Catharine A. MacKinnon, “Feminism, Marxism, Method, and the State: Toward a Feminist Jurisprudence” in Sandra Harding, ed., Feminism and Methodology (Indiana: Indiana University Press, 1987)
3. Catharine A. MacKinnon, Toward a Feminist Theory of the State (Cambridge, Mass.: Harvard University Press, 1989)
4. Catharine A. MacKinnon, “From Practice to Theory, or What is a White Woman Anyway?” (1991)4:1 Yale Journal of Law and Feminism 13.
5. Mary Jane Mossman, “Feminism and Legal Method: The Difference it Makes” (1986) 3 Australian Journal of Law and Society 30.
6. Australian Journal of Law and Society, at 31.
7. Those cases are In re French (1912), 1 D.L.R. 80
8. the Persons Case (Re Meaning of the Word “Persons” in s. 24 of the B.N.A. Act), [1928] S.C.R. 276
9. Edwards v. A.G. for Canada, [1930] A.C. 124.
10. Mossman, A.C., 2 at 38.
11. Carol Smart, “Law's Power, the Sexed Body, and Feminist Discourse” (1990) 17 Journal of Law and Society 194 at 197–198.
12. Harding, Journal of Law and Society 1 at 29.
13. See, for example, the work of Dorothy E. Smith, including: The Everyday World as Problematic: A Feminist Sociology (Toronto: University of Toronto Press, 1987)
14. “Women's Perspective as a Radical Critique of Sociology” in Harding, The Everyday World as Problematic: A Feminist Sociology 1 84
15. “Institutional Ethnography: A Feminist Method” in Arlene Tigar McLaren, ed., Gender and Society: Creating a Canadian Women's Sociology (Toronto: Copp Clark Pitman, 1988) 62
16. The Conceptual Practices of Power: A Feminist Sociology of Knowledge (Toronto: University of Toronto Press, 1990)
17. Texts, Facts and Femininity: Exploring the Relations of Ruling (London and New York: Routledge, 1990).
18. For detailed discussions of this problem, see Gillian A. Walker, Family Violence and the Women's Movement: The Conceptual Politics of Struggle (Toronto: University of Toronto Press, 1990)
19. Donileen R. Loseke, The Battered Woman and Shelters: The Social Construction of Wife Abuse (New York: State University of New York Press, 1992)
20. Dawn H. Currie, “Battered Women and the State: From the Failure of a Theory to a Theory of Failure” (1990) 1:2 The Journal of Human Justice 77
21. Lisa G. Lerman, “The Decontextualization of Domestic Violence” (1992) 83:1 The Journal of Criminal Law and Criminology 217.
22. For a brief discussion of this issue and some case examples, see the custody and access discussion paper: Canadian Department of Justice, Custody and Access: Public Discussion Paper (Ottawa: Communications and Consultation, 1993).
23. Lorenne M.G. Clark's findings in “Wife Battery and Determinations of Custody and Access: A Comparison of U.S. and Canadian Findings” (1990) 22:3 Ottawa Law Review 691 may seem to refute the claim that judges are reluctant to consider evidence of wife abuse as relevant to determinations of custody and access,. However Clark admits, at page 709, that judges stress the primary caregiver role of the mother in awarding custody, and thus, I would argue, minimize abuse as a factor. In other words, the woman's experience of abuse may be ignored.
24. For research which addresses this correlation, see Peter G. Jaffe, David Wolfe & Susan Kaye Wilson, Children of Battered Women (Newbury Park: Sage, 1990)
25. Peter G. Jaffe, David Wolfe & Susan Kaye Wilson, “Promoting Changes in Attitudes and Understanding Conflict Resolution Among Child Witnesses of Family Violence” (1986) 18:4 Canadian Journal of Behavioural Science 356
26. Peter G. Jaffe, David Wolfe & Susan Kaye Wilson, Statistics Canada, “The Violence Against Women Survey” The Daily (Ottawa: Ministry of Industry, Science and Technology, 18 November 1993).
27. Demie Kurz & Evan Stark, “Not-So-Benign Neglect: The Medical Response to Battering” in Kersti Yllo & Michele Bograd, eds., Feminist Perspectives on Wife Abuse (Newbury Park: Sage, 1988) 249.
28. Feminist Perspectives on Wife Abuse
29. Carol Smart, Feminism and the Power of Law (London & New York: Routledge, 1989).
30. Lorenne M.G. Clark, “Feminist Perspectives on Violence Against Women and Children: Psychological, Social Service, and Criminal Justice Concerns” (1989) 3 Canadian Journal of Women and the Law 420.
31. Canadian Journal of Women and the Law, at 429. The recognition that women were likely to return to abusive relationships was the impetus for some programs for abusers.
32. Both of these issues are highly controversial within the feminist community. There is debate about the success of programs for batterers. Even those who run such programs admit that their success rate is likely low. See Lori Beaman-Hall, Negotiating the Options: How a Program for Batterers Negotiates its Identity in a Network of Community Agencies (Master's Thesis, University of New Brunswick, 1992). Mandatory charging may have the consequence of revictimizing the abused woman who refuses to give evidence once the charge has proceeded to court. For a discussion
33. see Patricia Hughes, “How Many Times a Victim?: L.(A.) v. Saskatchewan (Crimes Compensation Board), and Pigeau v. Crowell, P.C.J.” (1993) 6 Canadian Journal of Women and the Law 502.
34. Currie, Canadian Journal of Women and the Law 11 at 87.
35. Hughes, Canadian Journal of Women and the Law 20.
36. For a thought-provoking discussion of women's agency in the context of abusive relationships, see Martha R. Mahoney, “Victimization or Oppression? Women's Lives, Violence, and Agency” in Martha Albertson Fineman & Roxanne Mykitiuk, eds., The Public Nature of Private Violence: The Discovery of Domestic Abuse (New York and London: Routledge, 1994) 59.
37. Susan Boyd, “Some Postmodernist Challenges to Feminist Analyses of Law, Family and State: Ideology and Discourse in Child Custody Law” (1991) 10 Canadian Journal of Family Law 87.
38. For one person's story of the agony of the custody, access, support process, see Jane Gordon, “Multiple Meanings of Equality: A Case Study in Custody Litigation” (1989) 3 Canadian Journal of Women and the Law 256.
39. Clark, Canadian Journal of Women and the Law 13 at 691.
40. Ross Finnic, “Women, Men and the Economic Consequences of Divorce: Evidence from Canadian Longitudinal Data” (1993) 30 The Canadian Review of Sociology and Anthropology 2.
41. Geraldine Waldmann, “Representing the Battered Woman” (1989) 3 Canadian Family Law Quarterly 167.
42. Desmond Ellis, Post Separation Woman Abuse: The Contribution of Lawyers as “Barracudas” “Advocates” and “Counsellors” (North York, Ontario: LaMarsh Research Program, York University, 1988).
43. Anne Worrall, Offending Women: Female Lawbreakers and the Criminal Justice System (London and New York: Routledge, 1990) at 22.
44. Marilyn MacCrimmon, “The Social Construction of Reality and the Rules of Evidence” (1991) 25:1 U.B.C. Law Review 36.
45. Elizabeth M. Schneider, “Describing and Changing: Women's Self-Defense Work and the Problem of Expert Testimony on Battering” (1986) 9 Women's Rights Law Reporter 198.
46. Women's Rights Law Reporter, at 198.
47. R. v. Lavallée, [1990] 1 S.C.R. 853.
48. The Court did find that “traditional self-defence doctrine does not require a person to retreat from her home instead of defending herself”, 1 S.C.R., at 888.
49. Christine Boyle, “A Feminist Approach to Criminal Defences” in Richard F. Devlin, ed., Feminist Legal Theory (Toronto: Emond Montgomery, 1991) 6 at 9–10.
50. Christine Boyle points out that the requirement of immanent attack is a “judge-made rule, a gloss on the relevant Criminal Code provisions”, Feminist Legal Theory, at 10.
51. The Supreme Court in Lavallée, Feminist Legal Theory 35 at 876, also acknowledged that the immanent danger requirement is not stipulated in section 34(2)(a) of the Criminal Code, but has been read in by case law.
52. Lavallée, Feminist Legal Theory 35 at 874.
53. Feminist Legal Theory, at 883.
54. Hughes, Feminist Legal Theory 20.
55. For a detailed discussion, see Isabel Grant, “The ‘Syndromization’ of Women's Experience” (1991) 25:1 U.B.C. Law Review 51
56. Schneider, U.B.C. Law Review 33.
57. MacCrimmon, U.B.C. Law Review 32 at 47
58. Lynne Pearlman, “New Possibilities for Women as Highest Court Contextualizes Wife Assault” in T. Brettel Dawson, ed., Women, Law and Social Change: Core Readings and Current Issues (Carleton University: Captus, 1990).
59. Grant, Women, Law and Social Change: Core Readings and Current Issues 42.
60. Mossman, Women, Law and Social Change: Core Readings and Current Issues 2 at 40.
61. Women, Law and Social Change: Core Readings and Current Issues at 41.
62. Worrall, Women, Law and Social Change: Core Readings and Current Issues 30 at 20.
63. Lucinda M. Finley, “Breaking Women's Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning” (1989) 64 Notre Dame Law Review 890.
64. For a discussion of police impact on and interpretations of abused womens' experiences, see Rosanna Langer, “Male Domestic Abuse: The Continuing Contrast Between Women's Experiences and Juridical Responses” (1995) 10:1 Canadian Journal of Law and Society 65 at 77–81.
65. Mossman, Canadian Journal of Law and Society 2 at 39.
66. For example, Christine Boyle, “Sexual Assault and the Feminist Judge” (1985) 1 Canadian Journal of Women and the Law 93.
67. For a critique of Smart's conceptualization (or perhaps more accurately, lack of conceptualization) of decentering, see Annie Bunting, “Feminism, Foucault, and Law as Power/Knowledge” (1992) 30:3 Alberta Law Review 829.
68. How and whether such “local” solutions work is a matter for further investigation. We should not assume that local solutions automatically empower women. See Iris Marion Young, “The Ideal of Community and the Politics of Difference” in Linda J. Nicholson, ed., Feminism/Postmodernism (New York & London: Routledge, 1990) 300 at 300. The author points out that while the dream of community (local solutions) is understandable, it is politically problematic in that “those motivated by it will tend to suppress differences among themselves or implicitly to exclude from their political group persons with whom they do not identify.”
69. Elspeth Probyn, “Travels in the Postmodern: Making Sense of the Local” in Nicholson, Feminism/Postmodernism, at 176. Probyn describes the concept of locale as “a place that is the setting for a particular event”; local as “that directly issuing from or related to a particular time”; and location as “what we may hold as knowable” at 178. For the purposes of the discussion here, I have collapsed these three concepts into one.