Personal Autonomy and the Criminal Law: Emerging Issues for Women
Personal Autonomy and the Criminal Law: Emerging Issues for Women Ottawa: Canadian Advisory Council on the Status of Women, 1987, 84 pp.
87 Pages Posted: 3 May 2014
Date Written: 1987
Women come to the criminal law with seemingly conflicting demands. In some arenas, the state is asked to intervene to protect women’s interests in safety. Yet it is asked to withdraw from other arenas in order to safeguard women’s interests in bodily integrity. The theme that unites these demands is a vision of a society where women enjoy relative equality in terms of their ability to pursue autonomous lifestyles, free from the fear of pervasive violence and the threat of state control over sexuality and reproductive destiny. This background paper assesses those demands which have been met by the Canadian government to date. It also identifies emerging criminal law issues that have the potential to empower or oppress women.
The first section of the paper sets out four possible equality models that could be used to facilitate women’s autonomy. The selection of a preferred equality model or models will in turn affect the assessment by the Canadian Advisory Council on the Status of Women (the Council) of alternative legislative reforms regarding the emerging criminal law issues facing women.
The second section of the paper surveys these new criminal law issues. Four major areas or issues were selected by the Council for development in this background paper:
-Wife battering; -Sexual Assault: Definition of - Use of rape trauma syndrome evidence to prosecute - Videotaping of child victim’s testimony; -Feticide (causing the death of a fetus); -Special defences for women: Battered women syndrome - Premenstrual syndrome - Post-partum depression.
The relevant Canadian and US law is surveyed for each of the identified issues. Each section concludes with alternative legislative proposals, which are explained and evaluated for their relative advantages and disadvantages.
The Council identified these issues as worthy of exploration on the following grounds: the population affected by the issues, the relative lack of Canadian feminist legal scholarship on the issues, the imminence of resolution of the issues either in the courts or in the House of Commons, the existence of sufficient social science data to permit development of a tentative position on the issues, and the political feasibility of moving towards law reform.
Several of the issues chosen are not new, but instead involve new approaches or solutions to issues on which the Council has previously taken a position that it might now wish to reconsider. For example, wife assault and the definition of sexual assault are old issues that are re-examined here in light of new legislative solutions. Other issues, such as the use of rape trauma syndrome evidence to prove the offence of sexual assault, special defences for women, and the concept of an offence of feticide, constitute relatively novel issues in the Canadian legal context that have not yet been addressed by Council proposals.
The scope of this background paper was limited not only by time constraints, but by other factors and therefore does not deal with all of the important criminal law issues confronting women. For instance, abortion, pornography, prostitution and other sexual assault issues (such as the exclusion of evidence of the victim’s past sexual conduct) were omitted on the basis that the Council has already done extensive work on these issues and continues to support its prior recommendations on these questions. Other issues, such as the legalization of abortifacients and the reallocation of the burden of proving consent for the offence of sexual assault, have been left for future Council projects as more background information on these issues becomes available.
The limited time and space available affected the nature of the research and analysis devoted to the four issues selected for this paper. All the law reform proposals that emerge deserve further empirical research and intensive feminist debate. It is hoped that this background paper will serve to inspire both.
Keywords: equality, model, women, autonomy, criminal law, wife battering, assault, sexual, feticide, defences, legislation, proposal
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