Technologically-Facilitated Violence Against Women and Girls: If Criminal Law Can Respond, Should It?

47 Pages Posted: 4 Oct 2017 Last revised: 5 Feb 2018

See all articles by Jane Bailey

Jane Bailey

University of Ottawa - Common Law Section

Carissima Mathen

University of Ottawa - Common Law Section

Date Written: November 23, 2017

Abstract

With growing public awareness of the ways in which technologies, in various forms, can be used to perpetrate violence against women and girls (VAWG), long-standing feminist questions about the role of criminal law in responding to VAWG have resurfaced. First, can criminal law respond? Does existing criminal law cover the kinds of abuses that are manifesting in digitally networked environments? Second, should criminal law be used to address technologically-facilitated violence against women and girls (TFVAWG)? In particular, how should feminist advocates respond to the claim that penal models may eclipse “competing models of social justice” and effectively incorporate carceral politics “into the domestic terrain in a benevolent, feminist guise”? This paper focuses on reported jurisprudence involving TFVAWG from across Canada. Part I provides an overview of TFVAWG and related Canadian criminal law cases. It introduces some technology-specific terminology and provides an overview of some of the kinds of behaviours and consequences involved as well as the offences prosecuted in the cases we reviewed. Part II addresses the wrongfulness of TFVAWG, why it merits criminal censure, and the extent to which the offences being charged in the identified cases capture the essence of the wrong in issue. Part III returns to some of the cases outlined in Part I in order to explore three ways in which survivor-centred outcomes can be compromised in TFVAWG cases: the sometimes-competing assessments of concepts such as “harm”, “violence” and “injury”; implicit and explicit judgments about which victims are deserving of the criminal law’s protection; and inadequate protection of women’s and girls’ privacy, dignity and sexual integrity in public places.

Keywords: Cyberviolence, criminal law, human rights, feminism

JEL Classification: K14, K39

Suggested Citation

Bailey, Jane and Mathen, Carissima, Technologically-Facilitated Violence Against Women and Girls: If Criminal Law Can Respond, Should It? (November 23, 2017). Ottawa Faculty of Law Working Paper No. 2017-44. Available at SSRN: https://ssrn.com/abstract=3043506 or http://dx.doi.org/10.2139/ssrn.3043506

Jane Bailey (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada
613-562-5800 ext. 2364 (Phone)
613-562-5124 (Fax)

Carissima Mathen

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

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