Gillian Balfour

Falling Between the Cracks of Retributive and Restorative Justice The Victimization and Punishment of Aboriginal Women

In 1996, the Canadian government introduced progressive sentencing law reforms that called for special consideration of the conditions in Aboriginal communities as legacies of colonialism and to limit the use of incarceration. At the same time, feminist-inspired law reforms sought compulsory criminalization and vigorous prosecution of gendered violence. Since that time, there has been a doubling of the rate of imprisonment of Aboriginal women, and gendered violence is three and a half times greater in Aboriginal communities. Using the sentencing decisions of two cases involving Aboriginal women convicted of manslaughter, the author explores the practice of law as a site of backlash and an appropriation of feminist-inspired antiviolence strategies. The author draws on feminist and critical race studies of restorative justice in the context of gendered violence to examine why the victimization–criminalization continuum has not been fully recognized in the practice of restorative justice.

Do law reforms matter? Exploring the victimization− criminalization continuum in the sentencing of Aboriginal women in Canada

In 1996 Canada introduced progressive sentencing law reforms, such as: restorative non-carceral alternatives for offenders to serve their prison sentence in the community under strict conditions for up to two years; and special consideration of Aboriginal offenders so that courts may take into account the detrimental effects of colonialism such as residential schools, family breakdown and substance abuse. This article is a quantitative examination of 168 reported sentencing decisions to assess the impacts of these reforms upon Aboriginal men and women convicted of violent offences. Findings presented here suggest that the potential of sentencing law reforms is realized unevenly across Canada, pursued most often in sexual assault cases, and seldom on behalf of Aboriginal women. I suggest sentencing law reforms are insufficient strategies to address the incarceration spiral of Aboriginal women when the conditions of their lives are contoured by legacies of trauma and neglect.

“To This Day She Continues to Struggle with the Terror Imposed upon Her”: Rape Narratives in Victim Impact Statements

This study locates the victim impact statements of raped women in the sociolegal context of significant sentencing law reforms introduced in Canada to address an ascendant victim’s rights movement. We examine 38 reported sentencing decisions in sexual assault cases in Ontario, Canada (1999–2010). Our objectives are to discern (a) whether the archetype of the ideal victim continues to influence juridical discourse after conviction and (b) what narratives of harm intersect with sentencing objectives and aggravating factors. Our findings suggest women express profound fear of re-victimization and traumatic effects of sexual violence regardless of the relational context of their rape experience. Most surprisingly, our data show sentencing judges view the sexual assault of an intoxicated rape victim as an aggravating factor. Future consideration for victim impact statements in sexual assault cases is discussed.

Searching prison cells and prisoner bodies: Redacting carceral power and glimpsing gendered resistance in women’s prisons:

In this article, I explore the routinized practices of prisoner discipline: searching bodies and cells in four Canadian federal women’s prisons. Through an analysis of post-search reports as well as reported incidents of use of force, I discuss three key findings: searching and confiscation patterns across institutions are not dictated by size of the inmate population or security level of the institution; the redaction of information by prison authorities is an increasing and pervasive tactic of penal governance legitimated through an inter-legality of privacy and security; and that the searching of prisoner bodies and cells suggests a highly discretionary use of searching authority across women’s federal prisons that produces a gendered organizational logic. The text of the reports implies how women prisoners continue to be censured for their errant behaviour through the confiscation of personal items deemed to be unauthorized. These data also illustrate the ways in which women prisoners seek to achieve agency and self-determination within limited means.

Theorizing the intersectionality of victimization, criminalization, and punishment of women: An introduction to the special issue

The impetus for this special issue is the ‘global lockdown’ (Sudbury, 2005) and unrelenting violence against poor and Indigenous women. Globally, one-third of the world’s female prisoner population is confined in the United States and China, followed by Russia and Thailand (Walmsley, 2006). Between 1977 and 2004 the rate of female incarceration in the US increased by 750%, and women are being jailed at a rate that is almost double the rate of men (Frost, 2006). African American women are six times more likely than white women to face imprisonment (Bureau of Justice Statistics, 2000). Statistics Canada reports the number of women admitted to remand (pre-trial custody) has risen by 36% between 2001 and 2006 (Babooram, 2008), and Indigenous women now comprise 72.5% of the federal female prisoner population (Pollack, 2009). In the United Kingdom, over the past decade, the female prisoner population has almost tripled and is deeply racialized: approximately 20% of female prisoners are classified as foreign nationals and 28% as ethnic minorities (Walmsley, 2006). The Australian Institute of Criminology reports that between 1984 and 2003 there was a 75% increase in the number of adult male prisoners, yet there was a 209% increase in the number of female prisoners. Furthermore, approximately 40% of Indigenous women prisoners are serving a prison sentence for fine default, where many others are incarcerated for ‘trivial crimes’ such as using offensive language in public, disorderly conduct or welfare fraud (Bartels, 2010; Forsythe and Adams, 2009). Overwhelming empirical evidence indicates that most criminalized and imprisoned women are poor, prostituted and victimized. The ruinous effects of neo-liberal austerity measures have been compounded by neo-conservative largesse seen in the expansion of the prison industry complex,

Surviving Incarceration: Inside Canadian Prisons

than the idea that ‘‘Haitians are 100% Vodouist’’ (p. 5)—a statement the authors read as a demographic claim rather than an assertion of a unifying cultural ideology or lingua franca that enables communication among Haitians who are differently positioned in Haiti and as migrants settled in the United States. Other related contradictions follow. Despite the suggestion that Haitian religious practices are liquid and flexible, the authors seem intent on arguing, sometimes despite the lack of evidentiary support, that Vodou is declining in Haiti and the diaspora. Referring to influential work by Karen McCarthy Brown and Elizabeth McAlister, they conclude, ‘‘Our observations in Miami and Haiti lead us to believe that the scholarly literature has exaggerated the reach and pervasiveness of Vodou in Haitian society and culture’’ (p. 88). This conclusion may be explained in part by the authors’ scant attention to Haitian religious practice in homes and other spaces where faith takes place. The lack of basements in the housing stock of Miami may not have driven Vodou underground as it did in New York City, but it may have pushed it to backyards and private rooms that are left unexamined in this work. In short, in its attention to differences across and within congregations, this volume is most useful for its detailed description of the Haitian American community as diversely Christian. While it is impossible to write about Haitian religion without a discussion of Vodou, this book might have been better off limiting its scope to two sides of the triangle and focusing on how Haitians have remade the Christian religious landscape of Miami. On this point, the authors deliver a valuable and nuanced contribution to the literature.