Six Degrees from Liberation: Legal Needs of Women in Criminal and Other Matters
Justice for inmates is a personal right and also an essential condition of their socialization and personal reformation. It implies both respect for the person and property of others and fairness in treatment. The arbitrariness traditionally associated with prison life must be replaced by clear rules, fair disciplinary procedures and the providing of reasons for all decisions affecting inmates.
Nowhere is access to the justice system to assert one’s rights more tenuous, and nowhere is the need for vigilance to ensure compliance with the Rule of Law more compelling than in correctional settings that largely function away from scrutiny. As Commissioners Hamilton and Sinclair wrote in the 1991 report of the Aboriginal Justice Inquiry of Manitoba, "Legislators pass laws and judges hand down sentences in awe-inspiring surroundings, but it is in prisons and jails that freedom finally is restrained."
The population of federally sentenced women – serving sentences of two years or more – is small. Women comprise only 2 percent of the total federal population: 350 incarcerated women compared to 12,600 men. Additionally, 500 federally sentenced women are on conditional release in the community.
However, the correctional population of federally sentenced women, particularly young women of colour, is the fastest-growing segment of the prison population. It has increased by 200 percent since the report of theTask Force on Federally Sentenced Women was written in 1990.
Aboriginal women are disproportionately incarcerated, at 18 percent of the population of federally sentenced women although they represent only 2.8 percent of the population of Canada. They account for the increased numbers of federally sentenced women in the Prairies. An increasing number of Black women - and women with cognitive and mental disabilities - are among the increased population of federally sentenced women in the East.
A 1991 Survey of Federally Sentenced Women indicates that two thirds of federally sentenced women are mothers, and 70 percent of these are single parents all or part of the time. Less than one third have any job qualifications beyond basic education, and two thirds have never had steady employment. As already noted, histories of physical and sexual abuse are commonplace among incarcerated women.
New federal women’s facilities have recently been established or built in the regions. Some have speculated that the increase in the number of federally sentenced women is attributable to a greater willingness on the part of judges to impose a federal sentence because a woman serving such a sentence is now more likely to be able to remain in her own region. It may also be that judges have responded to pressure from such provincial governments as Ontario's to give out tougher sentences. Judges may also give federal sentences because they believe that women serving such sentences are more likely to receive the treatment they need. Whatever the reason, the significant increase in women’s convictions, from 1,450 in 1994-95 to 2,150 in 1998-99, and the corresponding increase in more federal sentences, from 31 to 96 cases for the same period, suggests that judges are adopting a "tougher" approach toward the sentencing of adult women.
The kinds of offences for which women are most likely to receive a federal sentence are homicide, attempted murder, robbery, major assault, and drug trafficking/importation. These offences accounted for two thirds of all cases that received a sentence of two years or more in 1998-99. However, women’s offending differs significantly from men’s. For example, the evidence suggests that women’s violent offences tend to be reactive in nature. As a result, violent crimes are more often committed against intimates, not strangers, and many of these women – some report the majority – experienced abuse at the hands of their partners before committing a violent offence. In 1998, the majority of the 68 women serving a life sentence for murdering their intimate partners had been abused by their partners prior to the offence.
Madame Justice Arbour noted in the report of the Commission of Inquiry into Certain Events at the Prison for Women in Kingston, that although the relationship of women’s social and economic marginalization to the criminal justice system has been well documented, Aboriginal women are particularly affected by this inequality. They come to prison at a younger age than non-Aboriginal women. They generally have lower levels of education and employment. Alcohol and drug abuse is a greater problem for them, and is reported to have played a greater role in their offending. They also have a greater incidence of past physical and sexual abuse.
Moreover, they are incarcerated within a penal environment that is particularly alienating to many Aboriginal cultures. This cultural alienation reverberates within the correctional setting. As a consequence, many have observed that it is an impossible setting in which to heal:
In ways that are different from the world outside, but are nevertheless continuous with it, prisons offer more white authority that is sexist, racist and violent. Prisons are then one more focus for the pain and rage we carry. For us, prison rules have the same illegitimacy as the oppressive rules under which we grew up … Physicians, psychiatrists, and psychologists are white and male.
How can we be healed by those who symbolize the worst experiences of our past?
Kim Pate, Executive Director of the Canadian Association of Elizabeth Fry Societies, has noted that the penal environment has also had uniquely harsh consequences for women with mental and cognitive disabilities. Women with mental health needs are frequently criminalized because of their disability-induced behaviour in institutions or in the community. Correctional practice has been to respond to these mental health needs with a higher and more restrictive security designation. Pate points out that the inability of the correctional system to address cognitive challenges and mental health needs should not be a justification to classify prisoners as high security risks and subject them to harsher treatment and greater deprivations of their liberty. To do so is to engage in stereotyping of the sort prohibited by the equality provisions in Section 15 of the Charter.
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