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

Published online by Cambridge University Press:  18 July 2014

Lori Beaman-Hall
Lori Beaman-Hall
Affiliation:
Department of Sociology, University of New Brunswick
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Abstract

Traditional legal method continues to be one of the most unexplored aspects of the gendered nature of legal discourse. In this paper, I outline a number of problems legal method creates in relation to women's experiences, more specifically the ways in which legal method works, as part of legal discourse, to exclude abused women's stories. Expanding the conceptualization of legal method as a process which includes the more mundane and insidious aspects of the daily practice of law, this paper examines aspects of legal method which are often overlooked in feminist legal theory and research. The paper is intended as a beginning point for future discussion and empirical research and as such suggests the possible depth of the exclusionary practices of legal method and the harm suffered by women as a result. I conclude with a discussion of how women can subvert traditional legal method through the formulation of local solutions based on their own experiences.

Résumé

L'application de la méthode d'analyse juridique traditionnelle demeure l'un des phénomènes les moins explorés de la distinction fondée sur le sexe pratiquée dans le discours juridique. Dans le présent article, l'auteure fait état d'un certain nombre de problèmes découlant de l'application de cette méthode à l'expérience des femmes, et étudie plus particulièrement comment celle-ci, en tant que partie intégrante du discours juridique, fait abstraction de l'expérience vécue par les femmes violentées. Élargissant le champ d'analyse juridique traditionnelle en y intégrant les côtés triviaux et insidieux de la pratique du droit, l'auteure aborde certains aspects de l'analyse juridique souvent négligés par la recherche et la théorie féministe du droit. Cet article se veut le point de départ d'une discussion et de recherches futures et, en tant que tel, tente de mesurer à quel point la méthode d'analyse juridique, dans la pratique, fait abstraction de l'expérience des femmes tout en évaluant les conséquences néfastes d'une telle exclusion. L'auteure conclut en suggérant des méthodes permettant de circonvenir la méthode d'analyse juridique traditionnelle en adoptant des solutions adaptées à leur expérience propre.

Type
Research Article
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 11 , Issue 1 , Spring/printemps 1996 , pp. 125 - 139
Copyright
Copyright © Canadian Law and Society Association 1996

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Footnotes

*

I would like to thank Arlene Glencross for her helpful suggestions on an earlier draft of this paper.

References

1. See, for example, Bartlett, Katharine T., “Feminist Legal Methods” (1990) 103 Harvard Law Review 829 CrossRefGoogle Scholar; MacKinnon, Catharine A., “Feminism, Marxism, Method, and the State: Toward a Feminist Jurisprudence” in Harding, Sandra, ed., Feminism and Methodology (Indiana: Indiana University Press, 1987)Google Scholar; MacKinnon, Catharine A., Toward a Feminist Theory of the State (Cambridge, Mass.: Harvard University Press, 1989)Google Scholar; MacKinnon, Catharine A., “From Practice to Theory, or What is a White Woman Anyway?” (1991) 4:1 Yale Journal of Law and Feminism 13.Google Scholar

2. Mossman, Mary Jane, “Feminism and Legal Method: The Difference it Makes” (1986) Australian Journal of Law and Society 30.Google Scholar

3. Ibid. at 31.

4. Those cases are In re French (1912), 1 D.L.R. 80 and the Persons Case (Re Meaning of the Word “Persons” in s. 24 of the B.N.A. Act), [1928] S.C.R. 276; Edwards v. A.G.for Canada, [1930] A.C. 124.

5. Mossman, supra note 2 at 38.

6. Smart, Carol, “Law's Power, the Sexed Body, and Feminist Discourse” (1990) 17 Journal of Law and Society 194 at 197–98.CrossRefGoogle Scholar

7. Harding, supra note 1 at 29.

8. See, for example, the work of Smith, Dorothy E., including: The Everyday World as Problematic: A Feminist Sociology (Toronto: University of Toronto Press, 1987)Google Scholar; “Women's Perspective as a Radical Critique of Sociology” in Harding, supra note 1:84; “Institutional Ethnography: A Feminist Method” in McLaren, Arlene Tigar, ed., Gender and Society: Creating a Canadian Women's Sociology (Toronto: Copp Clark Pitman, 1988) 62 Google Scholar; The Conceptual Practices of Power: A Feminist Sociology of Knowledge (Toronto: University of Toronto Press, 1990); and Texts, Facts and Femininity: Exploring the Relations of Ruling (London and New York: Routledge, 1990).

9. I practised family law for almost five years. The majority of my clients were women who were economically disadvantaged.

10. I have placed particular emphasis on issues of custody and access for two reasons: first, these are the issues about which abused women seem to care most; secondly (and following from the first), custody and access is an area in which abused women are especially vulnerable.

11. For detailed discussions of this problem, see Walker, Gillian A., Family Violence and the Women's Movement: The Conceptual Politics of Struggle (Toronto: University of Toronto Press, 1990)Google Scholar; Loseke, Donileen R., The Battered Woman and Shelters: The Social Construction of Wife Abuse (New York: State University of New York Press, 1992)Google Scholar; Currie, Dawn H., “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 Google Scholar; and Lerman, Lisa G., “The Decontextualization of Domestic Violence” (1992) 83:1 The Journal of Criminal Law and Criminology 217.CrossRefGoogle Scholar

12. Abused women are not a homogeneous group; the implications of the gendered nature of legal method undoubtedly take different forms for women of colour, lesbian women, first-nations women, immigrant women and women of other disadvantaged groups. This paper is not meant to explicate the disadvantages legal method poses for those women, but rather is intended as a beginning point for further explorations.

13. 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).Google Scholar Clark's, Lorenne M.G. 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 Google Scholar 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.

14. For research which addresses this correlation, see Jaffe, Peter G., Wolfe, David & Wilson, Susan Kaye, Children of Battered Women (Newbury Park: Sage, 1990)Google Scholar; Jaffe, Peter G., Wolfe, David & Wilson, Susan Kaye, “Promoting Changes in Attitudes and Understanding Conflict Resolution Among Child Witnesses of Family Violence” (1986) 18:4 Canadian Journal of Behavioural Science 356 CrossRefGoogle Scholar; Jaffe, Peter G., Wolfe, David & Wilson, Susan Kaye, Canada, Statistics, “The Violence Against Women Survey” The Daily (Ottawa: Ministry of Industry, Science and Technology, 18 November 1993).Google Scholar

15. Kurz, Demie & Stark, Evan, “Not-So-Benign Neglect: The Medical Response to Battering” in Yllo, Kersti & Bograd, Michele, eds., Feminist Perspectives on Wife Abuse (Newbury Park: Sage, 1988) 249.Google Scholar

16. Ibid.

17. Smart, Carol, Feminism and the Power of Law (London & New York: Routledge, 1989).CrossRefGoogle Scholar

18. Clark, Lorenne M.G., “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.Google Scholar

19. Ibid. at 429. The recognition that women were likely to return to abusive relationships was the impetus for some programs for abusers.

20. 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 Beaman-Hall, Lori, 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).Google Scholar 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, see Hughes, Patricia, “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.Google Scholar

21. Currie, supra note 11 at 87.

22. Hughes, supra note 20.

23. For a thought-provoking discussion of women's agency in the context of abusive relationships, see Mahoney, Martha R., “Victimization or Oppression? Women's Lives, Violence, and Agency” in Fineman, Martha Albertson & Mykitiuk, Roxanne, eds., The Public Nature of Private Violence: The Discovery of Domestic Abuse (New York and London: Routledge, 1994) 59.Google Scholar

24. Boyd, Susan, “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.Google Scholar

25. For one person's story of the agony of the custody, access, support process, see Gordon, Jane, “Multiple Meanings of Equality: A Case Study in Custody Litigation” (1989) 3 Canadian Journal of Women and the Law 256.Google Scholar

26. Clark, supra note 13 at 691.

27. Finnie, Ross, “Women, Men and the Economic Consequences of Divorce: Evidence from Canadian Longitudinal Data” (1993) 30 The Canadian Review of Sociology and Anthropology 2.CrossRefGoogle Scholar

28. Waldmann, Geraldine, “Representing the Battered Woman” (1989) 3 Canadian Family Law Quarterly 167.Google Scholar

29. Ellis, Desmond, Post Separation Woman Abuse: The Contribution of Lawyers as “Barracudas” “Advocates” and “Counsellors” (North York, Ontario: LaMarsh Research Program, York University, 1988).Google Scholar

30. Worrall, Anne, Offending Women: Female Lawbreakers and the Criminal Justice System (London and New York: Routledge, 1990) at 22.CrossRefGoogle Scholar

31. The notion of the taking of instructions may also be operating at another level in relation to women and family law. Practitioners acknowledge that in many instances men control women through their children on marriage/relationship breakdown. We know that the majority of family cases never go before the courts. Many women are so fearful of losing custody of their children that they are willing to accept settlements that leave themselves and their children living in poverty. How do women come to make these decisions? An exploration of this issue may involve aspects of legal method other than or in addition to the characterization of the issue previously outlined in this paper. My point is, until research exploring this process is undertaken, we cannot appreciate the extent to which legal method/legal discourse contributes to the poverty of women and children.

32. MacCrimmon, Marilyn, “The Social Construction of Reality and the Rules of Evidence” (1991) 25:1 U.B.C. Law Review 36.Google Scholar

33. Schneider, Elizabeth M., “Describing and Changing: Women's Self-Defense Work and the Problem of Expert Testimony on Battering” (1986) 9 Women's Rights Law Reporter 198.Google Scholar

34. Ibid. at 198.

35. R. v. Lavallée, [1990] 1 S.C.R. 853.

36. The Court did find that “traditional self-defence doctrine does not require a person to retreat from her home instead of defending herself, Ibid. at 888.

37. Boyle, Christine, “A Feminist Approach to Criminal Defences” in Devlin, Richard F., ed., Feminist Legal Theory (Toronto: Emond Montgomery, 1991) 6 at 9–10.Google Scholar

38. Christine Boyle points out that the requirement of immanent attack is a “judge-made rule, a gloss on the relevant Criminal Code provisions”, Ibid. at 10. The Supreme Court in Lavallée, supra note 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.

39. Lavallée, supra note 35 at 874.

40. Ibid. at 883.

41. Hughes, supra note 20.

42. For a detailed discussion, see Grant, Isabel, “The ‘Syndromization’ of Women's Experience” (1991) 25:1 U.B.C. Law Review 51 Google Scholar; Schneider, supra note 33.

43. MacCrimmon, supra note 32 at 47; Pearlman, Lynne, “New Possibilities for Women as Highest Court Contextualizes Wife Assault” in Dawson, T. Brettel, ed., Women, Law and Social Change: Core Readings and Current Issues (Carleton University: Captus, 1990).Google Scholar

44. Grant, supra note 42.

45. Mossman, supra note 2 at 40.

46. Ibid. at 41.

47. Worrall, supra note 30 at 20.

48. Finley, Lucinda M., “Breaking Women's Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning” (1989) 64 Notre Dame Law Review 890.Google Scholar

49. For a discussion of police impact on and interpretations of abused womens' experiences, see Langer, Rosanna, “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.CrossRefGoogle Scholar

50. This is not to imply that all men have an interest in discounting, or a desire to exclude women's experiences.

51. Mossman, supra note 2 at 39.

52. For example, Boyle, Christine, “Sexual Assault and the Feminist Judge” (1985) 1 Canadian Journal of Women and the Law 93.Google Scholar

53. For a critique of Smart's conceptualization (or perhaps more accurately, lack of conceptualization) of decentering, see Bunting, Annie, “Feminism, Foucault, and Law as Power/Knowledge” (1992) 30:3 Alberta Law Review 829.Google Scholar

54. How and whether such “local” solutions work is a matter for further investigation. We should not assume that local solutions automatically empower women. See Young, Iris Marion, “The Ideal of Community and the Politics of Difference” in Nicholson, Linda J., ed., Feminism/Postmodernism (New York & London: Routledge, 1990) 300 at 300.Google Scholar 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.”

55. Elspeth Probyn, “Travels in the Postmodern: Making Sense of the Local” in Nicholson, Ibid. 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.