Six Degrees from Liberation: Legal Needs of Women in Criminal and Other Matters

Chapter 1: Legal Aid and Other Legal Needs of Women Accused (cont'd)

Chapter 1: Legal Aid and Other Legal Needs of Women Accused (cont'd)

1.4 Summary

This chapter examined the relationship between the life circumstances of women in conflict with the law and their law breaking; recent government policies that have aggravated their social and economic marginalization; and their legal aid and other legal needs as accused persons in criminal courts.

Women’s life circumstances and law breaking: When the stories of women in conflict with the law are examined, their history of victimization is impossible to ignore. The vast majority of incarcerated women, and an even greater proportion of Aboriginal women, have experienced abuse, most often perpetrated against them by men they know. Many also have substance abuse problems. However, unlike those of their male counterparts, women’s addictions are frequently linked to their experiences of abuse.

Economic disadvantage can play a role in bringing both men and women into conflict with the law. However, the risk of living in poverty is greater for women than for men, and greatest among Aboriginal women, women of colour and immigrant women. Unlike their male counterparts, women in conflict with the law are frequently the primary or sole caregivers for their children. As a result, they have fewer opportunities to obtain an education, to establish marketable skills or to maintain employment.

Nonetheless, women are charged with far fewer and less serious offences than men. In 1999, they were most frequently charged with theft under $5,000, followed by level 1 or common assault, fraud (most frequently welfare fraud), and possession or trafficking in cannabis – all of which accounted for 55 percent of the charges laid against women that year.

Women’s law breaking is inextricably linked to their poverty and abuse. As welfare incomes have dropped further from the minimum level of subsistence established by the poverty line, women have been increasingly prosecuted and imprisoned for welfare fraud. Women’s poverty is also a factor in their shoplifting items that they or their children need, their arrest for street prostitution, and their disproportionate imprisonment for fine default. While some jurisdictions have implemented fine-option programs, they rarely provide childcare, resulting in high failure rates for women with children. Charges for level 1 assault have increased significantly since 1987, in part because abused women are being counter-charged with assault when they call on the police to restrain an abusive partner.

Although women tend to be charged with less serious offences than men, the proportion of women in remand is roughly the same as for their male counterparts. Aboriginal women and women of colour are even more likely to be denied bail than White women. Like their male counterparts, women in remote and isolated communities – which include a large Aboriginal population – who are denied bail are detained in southern detention facilities because there are no such facilities in their home communities.

The role of the state in the increasing gap between the rich and poor: Recent government policies have aggravated women’s economic marginalization. These include a reduction in state expenditures on programs that benefit the poor, of whom women are a majority. Although the widening gap between the rich and poor – an inevitable consequence of policies such as these – has fuelled growth in demand for legal services, legal aid funding has decreased. Reduced funding to community-based advocacy groups has reduced the ability of disenfranchised people to influence discourse and policy. Finally, the ascendancy of the law and order agenda has led to more numerous criminal sanctions, stiffer sentences, and allocating responsibility for crime exclusively to the individual, while ignoring the correlates of crime such as illiteracy, poverty, victimization, substance abuse, and the absence of employment opportunities.

Anecdotal evidence indicates an increase in the number of unrepresented accused. The consequences of being unrepresented at trial can be severe for both men and women, especially those with mental disabilities. Unrepresented accused are more likely to plead guilty even if they do have a defence; to be convicted if they plead not guilty; and to receive a harsher sentence since they are unable to engage in charge, plea or sentence negotiations. A criminal record can severely compromise men's and women’s ability to obtain employment or a professional licence, to advance to a more responsible position, and to become bonded or insured. However, the consequences of a guilty plea or conviction and the resulting criminal record can be particularly harsh for women and their children. Women without citizenship may lose their landed immigrant or refugee status. Those who are mothers may lose credibility in child apprehension cases and custody and access disputes. Those who are sentenced to imprisonment will be separated from their children.

Legal aid and other legal needs: Given the implications of a criminal record for women and their children, the view that incarceration is the only relevant criterion triggering entitlement to legal aid representation must be challenged.

Women need representation to assist them in court proceedings, to appeal trial decisions to higher courts, and to challenge the constitutionality of other decisions that impact on them and their children (e.g., welfare provisions). Legal counsel must be sufficiently knowledgeable about women's life circumstances in order to be able to contextualize their offences. Circumstances such as women being physically threatened by their abusive partners can form the basis of a valid legal defence. Women also need legal advice to assist them in determining whether they have a legal defence and may plead not guilty. Finally, like their male counterparts, they need information about their rights, entitlements and responsibilities under the law. Such information should be made available through a variety of media to accommodate different levels of literacy, in a variety of languages, be accessible and available in remote locations. Target groups or communities should participate in the production and dissemination of information to increase the likelihood that it is accepted as legitimate.