Legal Responses to Violence Against Women in Canada
'Legal Responses to Violence Against Women', reprinted in Barbara A. Crow and Lise Gotell, eds., 'Open Boundaries: A Canadian Women’s Studies Reader' (2d ed.) Toronto: Pearson Education, pp. 256-267, 2004
19 Pages Posted: 16 Sep 2013
Date Written: 2004
Any history of the development and changes in the law as it relates to women and male violence is also a chronicle of the history of the women’s movement and its relationship to law. All of the legislation and policy that recognizes women’s rights to be free of male violence has been put in place because of the political strength and persistence of the women’s movement in our country. While this movement has always articulated women’s issues and rights in the context of equality, the repatriation of Canada’s constitution in 1982 from Great Britain (Constitution Act) and, specifically, the enshrinement of women’s equality rights in ss.15 and 28 of the Canadian Charter of Rights and Freedoms, for the first time created a specific legal tool by which to advance these claims.
In spite of our many legal advances, violence against women has not subsided in Canada because women’s vulnerability to male violence and our ability to harness law are inextricably linked to women’s social, economic and political position in Canada, in relation to those who hold power. Thus, while law is an important tool in advancing women’s equality rights, law alone cannot end this violence until all women’s equality is fully realized.
Before I commence, I would like to define my terms. First, when I speak of feminists or the women’s movement in Canada, I am speaking of women who accept and recognize the existence of women’s subordination economically, socially and politically, and who have a commitment to engage in struggle, of one sort or another, to change women’s inequality. This movement is aimed at achieving equality for all women and recognizes that women do not experience uniformly the benefits or disadvantages of sex but, rather, are differentially affected by white supremacy, class privilege, the heterosexual presumption, and the “norms” of ability.
Second, when I speak of women’s equality, I am referring to the idea of substantive equality. The difference between formal and substantive equality is that while formal equality merely insists on equality of treatment (and only to the extent that the decision-maker agrees that the two groups are similarly situated), substantive equality looks to the end result. Are women and men in a given society equal recipients of the benefits and burdens of that society? Among women, are we equally credible when we speak in the justice system? Are we equally free of violent assault? Sometimes, the most productive route to substantive equality will be to use formal equality or equal treatment as a tool; at other times, the specific conditions of women’s lives, including, for example, the threat and impact of male violence or racialized abuse experience by African-Canadian women, will require very particular rules or practices to move us toward equality.
Third, when I speak of law, I am using the term broadly, to refer to the law as drafted by legislators, as interpreted by judges in the common law or by jurors as finders of facts in trials, and as implemented by those who enforce the law and wield a great deal of discretion, such as police and prosecutors. Thus the women’s movement has recognized that the achievement of reforms in statutes or even in constitutions does not guarantee that those laws will become a lived reality, for police can refuse to take reports or can discredit women’s accounts of violence; prosecutors can decide which cases to pursue, based on their perhaps discriminatory beliefs or on their prediction that the case will fail in court due to the discriminatory beliefs of others; judges can effectively nullify a law through narrow interpretations, through the creation of common law defenses that uphold male supremacy, through the use of constitutional doctrines, through rulings on the evidence, and through instructions to the jury; and, even if a conviction is imposed, a judge can undermine its symbolism by imposing a sentence that makes a mockery of the conviction. Because of all these ways that law works, women’s advocates must be prepared for a long term process of both political struggle and legal engagement.
Keywords: women, men, violence, women's movement, law, equality, Canada, Constitution, ss. 15, ss. 28, Charter of RIghts and Freedoms, vulnerability, male violence, social, economic, political, inequality, white supremacy, class privilege, heterosexual presumption, norms, substantive equality, reforms, law
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