1.Short papers – . The papers will be marked on the following criteria:-All papers should be formal, organized and should include an introduction, discussion, conclusion and be formatted correctly using APA. It should include a reference page, in-text citations, be double-spaced and have one-inch margins. the paper should be three pages without the reference page. (4 pts.)-The paper should be well-written and sentences should be well-constructed, understandable, and flow from one section to the next. (5 pts.)-The paper should properly address the question or assignment. Papers must show evidence of thoughtful engagement with the topic. Students must show evidence of the ability to discuss and assess critically. (6 pts.)The Short paper:Find a journal article, newspaper report, or government report on the missing and murdered indigenous women inquiry in Canada (see additional resources for some ideas). Analyze and discuss some of the relevant issues and concerns raised about the inquiry.(I will attach a few of the class material that might help as well)And Justice for All?
Aboriginal Victims of Sexual Violence
Violence Against Women
Volume 14 Number 6
June 2008 678-696
© 2008 Sage Publications
10.1177/1077801208317291
http://vaw.sagepub.com
hosted at
http://online.sagepub.com
Arielle Dylan
Cheryl Regehr
Ramona Alaggia
University of Toronto
Concern for the recognition, support, and rights of victims within the criminal justice
system has grown in recent years, leading to legislative and procedural changes in the
administration of justice that have improved the experiences of victims. What is not
clear is whether all victims have benefited from changes in the system regardless of
race and social class. This study investigates the experiences Aboriginal people who are
victims of sexual violence have with the Canadian criminal justice system. The authors
seek to explore perspectives about their encounters with the judicial system from the
point of first contact with the police through involvement with the court and community service providers, utilizing grounded theory qualitative methodology. They conclude that race is a key determinant in the manner in which a victim will be perceived
by the people in the justice system and the manner in which the victim will approach
the judicial process.
Keywords:
Aboriginal victims; race; sexual violence
C
riminal justice or “retributive justice” is described as a process by which penalty
is meted out deservedly for crimes committed against the state. Following a
process that pits the offender against the state in an adversarial conflict, guilt is determined and the offense is avenged via sentencing (Goren, 2001; Zehr, 1995). The goals
of this system include deterrence for both the individual offender and others witnessing the punishment, promoting a sense of responsibility in offenders and acknowledgment of harm done to victims, providing reparation of harm done to victims, and
rehabilitation for offenders (Criminal Code of Canada, 1995). A number of critics
have suggested, however, that this form of punishment not only fails to meet the
stated goals (Goren, 2001; McElrea, 1999) but in some situations has excluded and
further traumatized the victims of crime (Hudson, 1998). It has been argued that
Authors’ Note: This research was generously supported through a grant from the Social Sciences and
Humanities Research Council of Canada. The authors wish to thank the participants in this study for sharing their time and stories.
678
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679
retributive justice places the victim at the mercy of a judicial system that may or may
not be able to prove guilt beyond a reasonable doubt. If the prosecution fails, victims
may feel further victimized and humiliated (Allan & Allan, 2000). Even when the
victim “wins,” the experience of grueling litigation may diminish healing potential.
In recent years, concern for the recognition, support, and rights of victims within
the criminal justice system has grown. Victim advocates have sought increased
standing for victims in the justice system. To this end, victim witness assistance
programs and victim impact statements have been developed and integrated into the
criminal justice system to rectify victim blaming and the absence of the victim’s
voice in conventional criminal justice proceedings. This has led some therapists and
advocates to believe that the justice system has the potential for vindication and healing of victims (Regehr & Alaggia, 2006).
But are all victims treated equally under the justice system and is there the same
potential for healing regardless of race and social class? Aboriginal people in Canada
have a long history of marginalization and oppression involving the expropriation of
land and culture by European colonialists, ultimately leading to segregation of
reserves and social dislocation. A history of state treatment of Aboriginal children
provided by the Royal Commission on Aboriginal Peoples (RCAP, 1996a) gives an
arresting account of the process of colonization, including the federal government’s
involvement in developing and administrating the residential school system as early
as 1874, the main goal of which was assimilation of Aboriginal people into EuroCanadian society. In 2001, the reported average income of Aboriginal people in
Canada was $19,132, fully 36% below the national average of $29,769 (Statistics
Canada, 2001a). Regardless of Canada’s economic state, census data indicate
employment among Aboriginal people is consistently lower and unemployment rates
considerably higher than those of the non-Aboriginal population (Statistics Canada,
2001b). The death rate for Aboriginal persons between 25 and 44 years of age is 5
times higher than the general rate. Approximately two decades ago, the average age
at death for Aboriginal men was 25 years lower and for women 28 years lower than
for non-Aboriginals (Department of Indian and Northern Affairs, 1989). Although
this gap in life expectancy between Aboriginal people and non-Aboriginals has
decreased, the life expectancy for both Aboriginal men and women is still 6.7 years
lower than for non-Aboriginals (Health Canada, 2004).
From a crime and justice perspective, the violent crime rate for all Aboriginal
people in Canada is significantly higher than the national rate and Aboriginal
people are also far more likely to be victims of violent crime than other Canadians
are (Auger, Doob, & Grossman, 1994). Moreover, Aboriginal women experience
violence at disturbingly high rates (Bohn, 2003; Goel, 2000), the overall mortality
rate resulting from violence being 3 times higher for Aboriginal women than
women who are non-Aboriginal (Native Women’s Association of Canada, 2004).
Given these high rates of abuse and assault, what are the experiences of Aboriginal
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people in the justice system? On one hand, concerns have been raised about
the overrepresentation of Aboriginal people in Canadian penal institutions, raising
questions about inequities in sentencing. Aboriginal people comprise 3.3% of
the nation’s population (Statistics Canada, 2001c), yet they account for approximately 12% of Canada’s federal offender population (Canadian Criminal Justice
Association, 1997). For example, in the Canadian province of Manitoba,
Aboriginal people constitute approximately 12% of the population, yet Aboriginal
people account for more than one half of the 1,600 people incarcerated on any
given day of the year in Manitoba’s correctional institutions (Aboriginal Justice
Implementation Commission [AJIC], 2004). Facts and figures of this kind have led
to the conclusion that discrimination against Aboriginal people pervades the operations of the justice system and that Aboriginal people are significantly disadvantaged as a result (AJIC, 2004; Hylton, 2002; Jiwani, 2002). Although concerns
exist regarding the treatment of all Aboriginal people encountering the justice
system, some point to the manner in which gender bias and the specific experiences of Aboriginal women as victims become obscured (Curtis-Fawley & Daly,
2005; Daly & Stubbs, 2006; Goel, 2000; Lucashenko, 1994). The criminal justice
system has been accused of escalating violence against Aboriginal women because
the inherent racism enrages offenders and fails to protect victims (Nancarrow,
2006). Several authors describe the move to restorative justice models for addressing issues of sexual violence and woman abuse perpetrated in Aboriginal communities as a result of dissatisfaction with the criminal justice system. However, many
see these models as perpetuating power imbalances and further disadvantaging
Aboriginal victims of violence (Cheon & Regehr, 2006; Daly & Stubbs, 2006;
Goel, 2000; Stubbs, 2002). Thus, it may not be that moving crimes of sexual violence committed against Aboriginal women out of the criminal justice system is a
better approach. Although there are general critiques in the literature about the
experiences of Aboriginal victims of sexual violence in the criminal justice system
and discussions of moves to alternative models, the literature that documents
women’s experiences in the courts is notably lacking.
This study investigates the experiences that Aboriginal people who are victims of
sexual violence have with the Canadian criminal justice system. We sought to
explore perspectives about their encounters with the judicial system from the point
of first contact with the police through involvement with the court and community
service providers. In this study, respondents were interviewed regarding their interactions with members from the legal community (police, prosecutors, defense
lawyers, and judges) and those of the support community (therapists, advocates, rape
crisis counselors) to identify their views about the criminal justice system, their role
in the process as victims of sexual violence, and the possibility for victim healing in
this retributive system.
Dylan et al. / Aboriginal Victims of Sexual Violence
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Method
The analysis presented in this article is part of a larger project that evolved from
a review of research, clinical, and theoretical literature addressing the issue of
victims of sexual violence in the criminal justice system that overwhelmingly
pointed to the negative impact of the system. The original research project, therefore,
sought to explore various aspects of the system that might contribute to harm by
investigating the experiences of victims of sexual assault and sexual abuse and their
interactions with the criminal justice system. The study was guided by a discoveryoriented qualitative design using a grounded theory method, an approach used
for developing theory in understudied areas (Creswell, 1998). Given the wellestablished numbers that sexual violence in Aboriginal communities occurs at much
higher rates than in the general population (LaRocque, 1994; McEvoy & Daniluk,
1995; Razack, 1994), we began by interviewing key informants practicing and
knowledgeable in this area to help us with theoretical sampling.
The authors of this article are aware that the literature has increasingly called for
research models that arise from Aboriginal traditions (Australian Housing and Urban
Research Institute, 2006; Couzos, Lea, Murray, & Culbong, 2005; De Ishtar, 2005).
However, we entered into the design of this study without a priori notions (i.e., that
victims were differentially impacted by the justice system) and relied on theoretical
sampling as described by Glaser and Strauss (1967) as central to the grounded theory
method. Theoretical sampling was guided by key informants who, indeed, suggested
that some victims as a group might experience the justice system in unique ways. It
was through this process that Aboriginal victims of sexual assault and abuse were identified as quite probably having qualitatively different experiences of the justice system.
The focus on the experiences of Aboriginal people in the justice system and the impact
on their healing evolved from theoretical sampling and, therefore, we continued in the
grounded theory tradition for data collection and analysis. We also believe this to be
an appropriate and relevant methodology to investigate the Aboriginal experience,
because an in-depth interview methodology supports the indigenous oral tradition of
transmitting information through storytelling (Smith, 1999).
Victims of sexual violence were interviewed to obtain their unique perspectives
on encounters with the justice system. Initially, a number of First Nations community agencies and organizations were contacted to select participants and the following inclusion criteria were used: (a) self-identification as Aboriginal, (b) victim of
sexual violence, and (c) experience with the criminal justice system. After having
obtained an initial small sample, recruitment of additional participants was based
principally on those representing a number of geographic locations, including both
urban and rural areas.
Eleven Aboriginal people who identified as victims of sexual violence were interviewed. It was at this point that saturation was believed to be achieved, because no
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more new information was emerging on the questions probed for the focus of the
study. Using the Long-Interview Method, McCracken (1988) and others have found
that saturation can be reached on 8 to 10 cases (Creswell, 1998). The participants
ranged in age from 33 to 53 years with a mean age of 42, and socioeconomic status
spanned from low to middle income. Ten of the participants were female and one
identified as transgendered. Eight were sexually abused as children or adolescents
and seven were assaulted as adults. The perpetrators included intimate partners, foster parents, family and extended family members, a family friend, and strangers. Ten
participants had reported the case to the police themselves, and the 11th participant
became actively involved in the judicial process once her landlord called the police.
Four testified in court, four prepared victim impact statements, and in two cases the
offender was found guilty and sentenced to jail.
Data gathering involved the use of the Long Interview (McCracken, 1988), an
instrument of inquiry that requires an interactive process that enables interviewers to
explore in depth participants’ reflections on their experience with the judicial system
and the therapeutic community. Once interviews were transcribed, data analysis
began with close reading of the interviews and open coding to identify and categorize broad themes of information, followed by axial and selective coding, which
were then used to establish interconnections and build a coding framework recommended for grounded theory data (Strauss & Corbin, 1990). The transcribed interviews were next imported into N*VIVO, a computer program designed for the
adjunctive management and study of qualitative data, and multiple coders performed
thematic analysis. Throughout the stages of data analysis, the constant comparative
method (Boeije, 2002; Glaser & Strauss, 1967) was used to compare categories and
themes within a single interview and between interviews within the study sample.
Finally, theoretical triangulation with relevant literatures was implemented after
themes began to emerge.
To ensure methodological rigor and establish trustworthiness, Lincoln and Guba’s
(1985) alternative model for naturalistic inquiry was observed. Prolonged engagement and persistent observation together with negative case analysis, reflexivity, and
peer debriefing promote credibility. Prolonged engagement is defined by the
researchers’ combined years of practice experience in rape trauma response, treatment of child sexual abuse, and crisis response for women and program development
for girls in an Aboriginal community, totaling more than 35 years collectively.
Persistent observation was achieved through interviews with multiple sources as
well as extensive contact with participants in screening calls, in-depth interviews,
debriefing, and sometimes follow-up contact for further clarification. Negative cases
were sought so that other perspectives could be explored, and even though these perceptions might be in the minority they were nonetheless represented in the data.
Reflexivity and peer debriefing are connected, and they occurred through discussions by the researchers with each other in testing various interpretations of findings
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683
and exhausting various avenues of explanation. This also meant returning to the literature when issues were murky and needed further clarification through theoretical
triangulation. Transferability is achieved through thick description (i.e., memotaking, field notes), whereas dependability and confirmability were achieved through
audiotaping interviews and transcribing verbatim the participants’ words, the use of
independent coders to reduce researcher bias, and providing quotes to confirm that
findings are grounded in the data.
One methodological limitation is that no data were gathered regarding specific
cultural identities of each of the Aboriginal participants. The findings reported are
pan-Aboriginal, within the Canadian context, and therefore risk concealing potentially important dissimilarities among participants’ experiences (Blackstock,
Prakash, Loxley, & Wien, 2005; Chandler & Lalonde, 1998).
Results
The following five themes that emerged from the data encapsulate the described
experiences of the participants as they navigated and sought to make sense of the
criminal justice system: (a) Police Encounter—Frontline of the Legal System;
(b) Key Players in the Courtroom—Defense Lawyers, Crown Attorneys, and
Judges; (c) Missing Information and Misinformation; (d) Resolution and Recovery;
and (e) Racism—A Persistent Issue. Although these themes may give the appearance
of discreteness, they intersect and overlap throughout the storied experiences of each
participant and across interviews.
The themes that emerged in this study are best understood in the context of violence and victimization, for it is not possible to address the experience of Aboriginal
victims of sexual violence in the courts without first considering the environment in
which their experiences arise. This context, which includes such elements as poverty,
cultural isolation, limited choices for employment and education, health disparities,
and systemic violence (Blackstock et al., 2005; Blackstock, Trocmé, & Bennett,
2004), was highlighted by participants in this study. One participant summarized the
intergenerational context of oppression and violence stemming from colonization:
They wanted to destroy my people but my people are too strong and that’s the bottom
line for those institutions . . . to destroy. That our children were sent to these institutions because we didn’t have schools is a farce because in the early [nineteen] hundreds
they had schools on the reserves, but they wanted to pull the children away from our
influence, away from the community’s influence. . . . They don’t want me to get into
the public and talk about this.
The result has been chaos and social disintegration. A participant described the
reactions of mainstream professionals who encountered the living situation of
Aboriginal people:
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[A professor] said, “All the kids are on gasoline or drugs and all the adults seem to be
on alcohol and there are just so many guns.” He said he felt so unsafe. . . . I spoke with
the Globe and Mail reporter and he also said, “It’s just crazy in that town.” And yet
you’re wanting to accept from this guy that “oh this is a nice little Inuit place with lots
of artists and it’s peaceful and it’s a loving place.”
In this context of social dislocation, poverty, unemployment, neglect, and violence, some participants indicated that they had lived in foster homes or in residential schools or had been inpatients in psychiatric facilities. One had previously been
incarcerated. These tragic histories influenced their perceptions of the system and
undoubtedly influenced how those in the system viewed these victims.
Police Encounter—Frontline of the Legal System
Contact with the police was an important topic that seemed to greatly impact the
views of the justice system for each participant. Given the considerable power that
police wield as the frontline of the criminal justice system and their decisionmaking authority to shape in many ways what follows after the initial report
(Harding, 2000), it is understandable that police would figure prominently in any
discussion in which victims of sexual assault are describing their experience with the
law. Of the 11 people interviewed, one described having a positive experience with
the police on her second attempt at reporting the same child abuse case that was not
pursued by the police a decade earlier, when “they just didn’t do any follow-ups. No
one came to take a formal statement.” But a decade later this participant found her
encounter with the police to be positive as the detective did a “proper investigation,”
which culminated in a jail sentence for the offender.
Although one participant thus felt that the police worked to ensure that justice
was served, this was not the experience of the other 10 participants. Many of these
participants described the police contact as marked by disrespect, dismissal, and professional failure. Indeed, this study has many examples of what the sexual assault
literature commonly terms “revictimization” and the “second assault” (Campbell,
2005). One participant related an experience in which the police were called regarding a home invasion in which the intruder, a stranger, had a dangerous weapon.
When the police arrived the intruder was gone, the weapon remained, and the participant reported that she had sustained no evident injuries. She indicated that the
police were certain the intruder must have been a nonstranger, a former boyfriend,
or someone she had met at a bar. When the victim eventually specified she had never
“been with a man,” she detailed how the police put on protective gloves, ceased communicating with her, and began investigating her home, but ultimately they “refused
to even write a report.” In the end, she concluded that one should “not even bother
going to the police because that’s a whole additional assault.” In another case, a participant reported that she had flagged down a police car just after being sexually
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assaulted by her boyfriend. She described the police as being “rude” toward her and
stated they “didn’t believe me.” The police asked her if she had been drinking
and they left abruptly when she answered she had. “They backed up, they saw me,
and they just took off. . . . They didn’t listen to me. They didn’t believe me. . . .
They didn’t ask my name, nothing. . . . I was scared. I thought he was going to kill
me.” Later, when she enlisted the help of the sexual assault hotline, the police
returned to take a report and charged the offender. Two participants summarized
experiences of Aboriginal people with the police in the following manner:
Cops are, I mean let’s look at it historically, what are cops? Cops are hired thugs, that’s
how they started historically and that’s what they’ve always continued to be. And that’s
not to say there aren’t well-meaning and well-intentioning good ones there. But by and
large it’s not there, I mean people are foolish and naïve if they believe they’re there to
protect the citizens.
The police were, the police are a real problem. People are very naïve if they want
to, you know, think otherwise. And I know that you know, we’re all supposed to, you
know, not be negative and you know, think the police are okay and it’s just a few bad
apples. But the problem is much bigger than just a few bad apples. Unfortunately, there
are far too many bad apples.
The data reveal that victims’ perceptions of police are influenced not only by the
direct treatment they receive from the police but also by the outcome of the justice
process. For example, the participant who spoke positively of the police had her case
result in a jail sentence, whereas the participants who did not describe explicitly
negative experiences with police appeared indifferent to their involvement, focusing
instead on defense lawyers and crown attorneys to whom we now turn.
Key Players in the Courtroom—Defense Lawyers,
Crown Attorneys, and Judges
Interactions in the courtroom and the processes of the court have been one of the
areas on which legal scholars have focused as particularly damaging to victims of
sexual violence (Allan & Allan, 2000; Goren, 2001; Hudson, 1998; McElrea, 1999).
At first glance, the title of this thematic section, “Key Players in the Courtroom,”
might seem an odd grouping that lacks succinctness or cohesion given that the category “lawyers” alone represents a kind of oppositional dyad in the adversarial
system of criminal justice. But this grouping emerged organically from the data, and
therefore best captures and frames any thematic discussion of participants’ interactions with these legal professionals in institutional spaces. Of the 11 participants, 5
had their cases go to court and, of these, 3 participants had to testify.
Almost all the participants expressed thoughts and feelings about the crown attorneys, and these positions were conflicting. Some participants found crown attorneys
to be “helpful” or “supportive.” One participant, for instance, stated,
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The lawyers, the crown attorney, he was very sensitive and he had gone through a lot
of different cases and assured me that . . . and I felt like he had the experience and stuff
going through courts and doing the whole thing. And telling me kind of “this is what
you do in court” and “just state the facts” and that type of stuff.
Positive experiences seemed to be associated with the overall outcome of the
hearing and the treatment of the participant during the court process. In the one case
the offender was sentenced to jail, whereas in the other case the offender was not
sentenced because of insufficient evidence, but the victim felt the crown attorney and
the court heard her and valued her input.
This positive experience with crown attorneys was not shared by all of the victim
participants in this study, and prosecutorial decision making, which sometimes bears
down on the victim while simultaneously working in favor of the offender, accounts for
many of the negative perceptions. This is a salient, though not unique, finding (see
Frohman, 1998) considering how sexual assault survivors are questioned by legal agents
for the purpose of ascertaining credibility, and crown attorneys in effect fulfill a second
gatekeeper role once the victim’s report gets beyond the police. The most vehement
statement against a crown attorney expressed by one participant was that “the crown
attorney was just a snake” who would not take the case to court “if there was a chance
he wouldn’t win.” This participant also expressed how the crown attorney made the
“ultimate decision about the case.” She “felt totally unbelieved by everyone” and for her
the implicit message of the case not proceeding to court was “You’re lying.” This issue
of victim credibility, of having to submit to painful questioning, having to retell the
events “for 2 years,” being encouraged to agree to invasive photographs, and persuaded
to acquiesce to the prosecutors’ version of events and strategies underscored many participants’ accounts. One participant described feeling “treated like a criminal” during
the interrogation process, and another had a sense that the crown attorney was distant
and “didn’t want to get too involved in the case.” One victim whose case was dismissed
because of insufficient evidence spoke of the crown lawyer as lacking “proper use of
her judicial authority” and exhibiting “poor judgment.” In terms of other key actors in
the courtroom, one participant mentioned her sentiments regarding the defense attorney:
“He was nasty. He was twisting things . . . and really making me nervous.” Because
none of the participants had any direct contact with the judges, their comments with
respect to these professionals are understandably limited: one found the judge to be
“experienced,” and another thought the judge “didn’t properly do her job.”
A central thread running throughout much of the discourse on courtroom professionals, and lawyers in particular, was that the victim participants often had a difficult time with legal terms and titles. That is, they would be certain about feeling
mistreated by a lawyer, but they were not certain about the lawyer’s title (e.g., crown
attorney or defense lawyer). It was often through the questions of the interviewers
that the formal titles became clear in the transcripts. This is not to suggest any lack
on the participants’ part but rather how the arcane nature of the judicial system for
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those who are not trained members serves to exclude and confuse. There is a relationship between language and power (see Howe, 1994), and lack of knowledge of
the language reduces the ability to participate in the discourse and diminishes one’s
power in the given system. This general lack of information about the legal system
and its players and processes is part of a larger theme that follows next.
Missing Information and Misinformation
The majority of participants described having a lack of information about the
legal process, which is not an atypical finding (see Frazier & Haney, 1996; Frohman,
1998), as well as a broader lack of information about services available for victims.
Furthermore, being uninformed is often compounded by being misinformed about
both the justice system and support services. Many participants felt that a clear
knowledge of the court process would have made the protracted course easier to
endure. Most believed having a comprehensible explanation of what lay ahead
would have made their involvement with the legal process more readily negotiable
and less overwhelming. One participant made this point unmistakably in response to
being asked what would have been helpful but was not given during her involvement
with the legal system: “There should be a process . . . telling me exactly what I’m
going to go through.” Several others also described how it would be useful to have
as much information as possible about the legal process so that they are not “in the
dark” or met with “surprises.”
Similarly, many of the participants were unaware of the existence of community
services they could use to support them through their traumatic and trying time. One
participant wished she “had known about victim witness services,” and another
regretted that she “didn’t know where all the Native organizations were” because she
was new to the city. Others reflected this same concern of not knowing what resources
were available and mentioned how they would have availed themselves of these services had they known. One person articulated very clearly not only the importance of
knowledge and its relevance to well-being but also the tendency to be revictimized by
the criminal justice system when stating, “The more information you have, the better
your rational mind is able to help soothe any injured emotional battering that you get.”
Many of the participants did not know about the workings of the judicial system and
the availability of relevant community services until late into their court experience,
some not until participating in this study’s interview. This lack of information is a critical issue that can precipitate feelings of powerlessness or lack of control over one’s
destiny, which can have serious implications for victim resolution and recovery.
Resolution and Recovery
The association between the outcome of the court process and victim resolution
became strikingly apparent when participants were asked to identify which part of
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the process was most helpful to achieve resolution. Because the criminal justice
system is an adversarial system in which victims are often treated as witnesses who,
as stated by a legal key informant participating in an earlier segment of this study,
are “seen . . . as ammunition on the side of the crown against the accused,” it is not
surprising that those victims who felt heard or validated by a guilty finding, or even
being thought credible, would experience their deployment in the system more positively than those who did not. Victims of sexual assault may seek a number of things
when they enter the legal system: some expect to gain closure, some healing, and
some only want retribution.
Although none of the participants in this study described anticipating healing
through the criminal justice system, most of their accounts suggest that they sought
retribution, a just punishment for the crime. The participants who felt the system
served these ends, either through a jail sentence or simply through having the justice
system validate their experience in some way, are those who expressed a sense of
resolution and the greatest satisfaction. One participant, for example, whose offender
was found guilty and jailed, remarked, “All of it has been pretty helpful. . . . Like
right from the start with the woman, the one that interviewed me, it’s all been positive.” Similarly, another participant for whom the justice process ended in a jail sentence stated, “The only time I felt there was a resolution was when the police came
and took him away.” However, her elaboration exemplifies the conflicting feelings
that ensue when the punishment does not seem to fit the crime. She asserted that the
perpetrator “should have got a longer sentence,” the court “should show no pity,” and
the offender “should be put away.” One other participant identified how instrumental being heard was to achieving a sense of resolution: “I got my voice heard. I can
take my power back. And that’s what makes me stronger.”
For the participants whose cases did not go to court, either because the police did
not file a report or the crown attorney elected not to move the case forward, or whose
cases went to court but the offender was not found guilty, the lack of resolution was
plainly stated. One, who had been sexually abused by her uncle for 12 years during her
childhood and adolescence, greatly wanted “resolution,” and to achieve that she
“wanted this person to be convicted of this crime.” But prosecutorial decision making
did not allow her case a chance to be heard in court and as a result she claimed, “I have
not achieved resolution.” Significantly, resolution and recovery, though they can and
often do overlap can also exist as two somewhat distinct spheres of experience. In this
participant’s case this meant that despite not achieving resolution through the criminal
justice system, she was able to work on her recovery, both from the original child sexual abuse and from being “retraumatized” by the justice system, with the support of a
therapist and taking part in cultural practices and learning traditional teachings:
“If you’re healing from something, cultural identity, cultural awareness is essential.”
One other victim mentioned being involved in a First Nations cultural form of recovery and the importance of this to her. She participated in a “traditional healing circle”
and claimed, “We were able to explore more how we felt in our anger and our healing
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and it was good.” Several others who felt they did not achieve resolution through the
legal process described the essential role played by therapists or advocates in their
healing. One participant, when discussing her recovery process, explained,
I hooked up with a therapist that started talking to me about everything that happened.
. . . And it was so helpful and so painful and yet I had to get it out. I had to talk about
it, and I started doing it bit by bit. It took a long time to try and deal with it. And I did
some kind of primal therapy and stuff. . . . It was absolutely incredible.
Another participant, when commenting on the important part advocates played in
her healing, stated,
[T]hey were, like I said, they were nurturing. They would actually come and pick me
up and take me to the, you know, the station. . . . I felt, I don’t know, nurtured. Do you
know what I mean? They did such a great job . . . very nurturing.
Of the nine participants who sought professional help, each identified therapists
and advocates as the professionals who provided the most support during their
recovery. This finding is consistent with the sexual assault literature (see Monroe
et al., 2005) and makes sense given the retributive, punitive, nontherapeutic goals of
the justice system.
For many participants, mystification around the role of the judicial system created
unnecessary dissonance that had an impact on healing. Although none of the participants expected to achieve healing through the judicial system, several of them anticipated more support would have been forthcoming. Much of the resulting
disappointment would have been mitigated had the participants been more fully
apprised of the process, as well as the purview of the criminal justice system. One
of the greatest hindrances to healing expressed in participants’ accounts was being
required to testify in court. Three of the four victims who testified desired court
reform with respect to testifying; they wanted to be exempt from this uncomfortable
feature of the criminal justice system. Testifying was variously described as revictimizing, retraumatizing, and harmful. One participant suggested the court should
never bring a victim and offender together; videotapes should be used instead. Two
other participants recommended making use of video technology so that testifying
could happen in real time, but the victim could be in a separate room from the
offender. “I shouldn’t have to show up for court, especially for things like that. . . . I
wish I didn’t even have to go to court. Let them deal with it and not me,” stated one
victim. One woman who was subpoenaed described how painful testifying was for
her: “I don’t like to face people. I didn’t want to go on the stand. I didn’t want to face
those people. I didn’t want to say anything. I don’t like talking. I don’t mind talking
to women. I mean being around men for me is very hard.” Another reported her
experience testifying as follows: “It was kind of demeaning when you have to
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explain what something looked like. You know, their genital area or exactly how
(inaudible). It was kind of embarrassing. I felt very uncomfortable and nervous as
hell.” Although these complaints regarding testifying are not uncommon among sexual assault victims, the results of this study suggest that the fact of being Aboriginal
amplified the negativity of the experience for this study’s participants.
Racism—A Persistent Issue
The impact of race in each of these participants’ cases must be underscored. One
aspect of racism in Aboriginal communities is underprotection (RCAP, 1996b). The
Aboriginal participants in this study recounted events that indicate underprotection
was a reality for them. In one case in this study, a victim stated a home invasion
occurred and the incident was not investigated by police. In another case, a victim
reported she flagged down the police car to request help, and the police response was
to inquire whether she was drunk and drive away.
Racism emerged potently as a theme in the data, although there were no specific
interview questions addressing race. Although not all the participants mentioned
race, the five who did raise this issue speak with such passion and authority that they
seem to connect with and articulate the tacit racialized and racist experiences
described by the other participants. One participant commented on racism toward
Aboriginal women, alluding to the tenacious stereotype of the dirty, licentious
“squaw” (see Razack, 2000). Of her assault and sexual abuse she said, “An
Aboriginal woman? Ugh! I was asking for it.” She also discussed the phenomenon
that she terms the “prairie runs,” in which Aboriginal people living in Canada’s
prairie provinces are sometimes taken by the police to remote locations and dropped
off, where they may die from exposure (see Razack, 2000). The closing example this
participant gave of institutional racism involved her murdered sister, whom she
claimed the police falsely “labeled a sex-trade worker.” She concluded that “what’s
legal and what’s right are so far apart.” Two other participants identified racism as
the source of their poor treatment by the police, and a fourth participant who mentioned racism offered a trenchant critique of the legal system: “I’m kind of anti–
justice system because I’ve been damaged by the justice system . . . they’re classist
. . . the justice system revictimizes people of color, black people, Native people, and
it’s ethnocentric. So I’m not pro–justice system. I understand [it] and I think it’s a
big money-making, patriarchal thing.” Another participant stated, “There’s no
accountability, once you’re a judge, there’s no accountability. I mean we have many
judges in this country and when I say many, I mean many, who are allowed to make
racial slurs, allowed to be ignorant, and they don’t get called on it.” These disclosures and assessments about racism put forward by the Aboriginal participants elucidate both the existential challenges of their racialized lives in a racist society and
the way this can manifest in the institution that is our Canadian legal system.
Dylan et al. / Aboriginal Victims of Sexual Violence
691
Discussion
Criminal justice is the process to which victims of sexual violence most often turn
when seeking intervention and redress for the crime committed against them. In this
adversarial system, where the offender is opposed to the state, the victim is typically
a pawn in the prosecutorial attempt to establish guilt and penalize the offender by
means of sentencing. In effect, the victim’s apparent representation by the government extends only as far as the state’s interest in protecting the public and maintaining a civilized society, meaning prosecutors are positioned to represent public
interests not victim needs (Murphy, 2001). The fallout of this process for the victim
is manifold, causing victims and advocates alike to question who is protecting the
rights of victims. Indeed, some victims have concluded that the offenders’ rights take
precedence over their own (Frazier & Haney, 1996) in an unfair system that revictimizes rape victims by questioning their credibility and character for the purpose of
assessing and, potentially, building a case (Belknap, 2001; Frohman, 1998). Given
that certain groups are rendered more susceptible to violence through the coalescence of intersecting oppressions such as gender, race, and class (Crenshaw, 1991),
and research, clinical, and anecdotal evidence suggest Aboriginal women experience
higher rates of violence and sexual abuse than non-Aboriginals (LaRocque, 1994;
McEvoy & Daniluk, 1995; Razack, 1994), it would follow, even with Aboriginal
women’s reluctance to seek legal involvement (Barker-Collo, 1999), that a considerable number of Aboriginal sexual assault victims are having encounters with the
Canadian justice system.
This study sought to gain an understanding of the experiences of Aboriginal sexual assault survivors who have been involved with the criminal justice system.
Through the analysis, we discovered a number of commonalities between the
victims’ perceptions and descriptions and the findings in the relevant research literature. However, we also discovered the extent to which Aboriginal victims of sexual
violence experienced racism in connection with the legal system as the colonial construct of Aboriginal peoples as inherently inferior continues to influence legal relations (Monture-Angus, 2000).
At the front end of the justice system, the encounter with police can be humiliating for victims of sexual violence as they are asked questions regarding their sexual
histories, what they were wearing at the time of the assault, whether or not they knew
the offender, and whether they were under the influence of alcohol (Campbell,
2006). Police are also especially interested in whether or not a weapon was involved,
and in the extent and severity of physical injuries if sustained (Campbell, 1998).
Such questions are asked to determine victim credibility and to distinguish the “good
victim” from the “bad victim” (Campbell, 1998; Frohman, 1991). However, given
that some police officers already harbor stereotypic attitudes toward Aboriginal
peoples (Neugebauer, 2000), the possibility of being categorized as a “good victim”
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Violence Against Women
is narrowed. Participants in this study perceived the police to be indifferent or unresponsive to Aboriginal victims of sexual assault, sometimes leaving them vulnerable
and unsafe. In this regard the figurative “second assault” referred to frequently in the
literature can become for Aboriginal women a failure to ensure physical safety. The
way that race figures prominently in the transformation of the “second assault” into
something more concrete, something potentially endangering physical safety, is a
profound difference that emerged in the data. As participants’ accounts revealed,
racism pervaded their interactions with the legal system to varying degrees and with
different judicial players. This finding is consistent with research that has found that
a victim’s race may be a significant factor influencing sentencing (Campbell, 1998;
Konradi & Burger, 2000).
In contrast, participants all described their involvement with therapists and advocates in positive terms, and this too echoes findings in the relevant scholarly literature (Campbell, 2006; Campbell, Wasco, Ahrens, Sefl, & Barnes, 2001; Monroe
et al., 2005). In these segments of victims’ accounts, there was a noticeable absence
of race issues, focusing instead on the extent to which these professionals provided
support and facilitated healing. Although a couple of participants were involved in
traditional Aboriginal healing approaches (talking circles, cultural connection,
teachings) alongside their mainstream therapy, most study participants only
described seeing therapists and advocates practicing conventional Western therapies.
The fact that the two different branches of community response to sexual violence,
the legal and the therapeutic, affected the victim participants in such starkly different ways can be attributed in part to the experience of racism in one process and not
the other. That is, in the legal system most felt that they were seen first as Aboriginal
people and, therefore, had to deal with all that this connotes existentially, whereas in
the therapeutic community participants were seen first as victims in need of support
and advocacy. This in no way suggests anything about the victim participants’
primary self-identity in either process but rather the possible role race played in their
experience of the legal process.
Conclusion
The results of this study, as evidenced by the experiences of Aboriginal victims
of sexual violence, suggest that race is an important determinant of experiences in
the Canadian justice system. The Canadian judicial system is not only both a patriarchal and ethnocentric state structure (having its roots in Anglo-Saxon values), but
its frontline has a history of oppressive and abusive practices with Aboriginal people
(RCAP, 1996c)—practices further documented by accounts in this study.
We can trace an unbroken record of injustice back through generations, to our grandfathers and our grandmothers, our great-grandfathers, and to those before them. We can
Dylan et al. / Aboriginal Victims of Sexual Violence
693
trace them back to the time when a label was put on our people, legitimate victim.
Other people learned that they could victimize us and nothing would happen because
the laws, your laws, did not protect us. (Rufus Prince, Long Plain, quoted in Aboriginal
Justice Implementation Commission of Manitoba, 2004)
As professionals working within the justice system, it is imperative that we do not
ignore the influence of context in the lives of the individuals we are assessing,
reporting on, and testifying about. Race is a key determinant in the manner in which
a victim will be perceived and treated by the courts as they are key determinants in
the manner in which the victim will approach the judicial process. If these issues are
not considered in our analysis, we only serve to further perpetuate injustice. Given
that several of the participants indicated their journey of healing was impeded by
interactions with police and lawyers, educating these professionals about how
Aboriginal victims of sexual violence experience the criminal justice system would
be constructive. It is also essential that more detailed information be provided to
victims of sexual violence who are involved with the criminal justice process, delineating what the process entails. Moreover, the courts would do well to observe and
respond to the concern raised by a number of participants in this study who desired
not to be retraumatized by being brought into the courtroom with the offender.
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studies involving various forms of child and adult victimization, victims’ experiences in the justice
system, and child welfare practices in cases of domestic violence.
Week 7 – Indigenous Victims
General
Aboriginal people are overrepresented in the Criminal Justice System both as
victims and offenders.
Although the statistics are imperfect, those available are enough to demonstrate
the disproportionate occurrence of violence in many Indigenous communities and
the traumatic impact of crime and abuse of power on Indigenous peoples.
Indigenous women and children are particularly vulnerable to violence.
Each intervention to assist an Indigenous person should respect that person’s
individuality.
A person who is Indigenous should not be denied the right, in community with
other members of his or her culture or ethnicity, to seek and receive assistance as
a victim of crime or abuse of power.
In 1985 the United Nations General Assembly endorsed by consensus the
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.
This international instrument was the first dedicated exclusively to victims of
crime and victims of abuse of power.
Since then, that Declaration has become a primary reference for international,
national and local victim-oriented reforms over the globe.
Several clauses in the declaration are particularly relevant to Indigenous peoples
as victims of crime.
The Declaration defines victims as “persons who individually or collectively have
suffered harm, including physical or mental injury, emotional suffering, economic
loss or substantial impairment of their fundamental rights through acts or
omissions that are in violation of criminal laws operative within member states”
In other words, the declaration acknowledges victims as a natural person but also
as a collective of persons, so it is consistent with many Indigenous rights
narratives.
Clause 7 states “Informal mechanisms for the resolution of disputes, including
mediation, arbitration and customary justice or indigenous practices, should be
utilized where appropriate to facilitate conciliation and redress for victims”.
Clause 8 states “Offenders or third parties responsible for their behaviour should,
where appropriate, make fair restitution to victims, their families or dependants.
Such restitution should include the return of property or payment for the harm or
loss suffered, reimbursement of expenses incurred because of the victimization,
the provision of services and the restoration of rights.
Clause 9 states “In cases of substantial harm to the environment, restitution, if
ordered, should include, as far as possible, restoration of the environment,
reconstruction of the infrastructure, replacement of community facilities and
reimbursement of the expenses of relocation, wherever such harm results in the
dislocation of a community.
Clause 11 states “Where public officials or other agents acting in an official or
quasi-official capacity have violated national criminal laws, the victims should
receive restitution from the State whose officials or agencies were responsible for
the harm inflicted. In cases where the Government under whose authority the
victimizing act or omission occurred is no longer in existence, the state or
Government successor in title should provide restitution to the victims.”
Clause 12 states “When compensation is not fully available from the offender or
other sources States should endeavour to provide financial compensation to:
(a) Victims who have sustained significant bodily injury or impairment of
physical or mental health as a result of serious crimes:
(b) the family, dependants of person who have died or become physically or
mentally incapacitated as a result of such victimization.
Clause 12 states “The establishment, strengthening and expansion of national
funds for compensation to victims should be encouraged. Where appropriate,
other funds may also be established for this purpose, including in those cases
where the State of which the victim is a national is not able to compensate the
victim for the harm.
Clause 14 states “Victims should receive the necessary material, medical,
psychological and social assistance through governmental, voluntary, communitybased and indigenous means.
These clauses embody rights on access to justice, provision of assistance, and on
restitution or compensation for victims of crime and abuse of power that are
human rights.
Indigenous justice attempts to restore indigenous communities and to put right
the destruction of Indigenous people’s culture and social structures brought
about by colonization, disposition and state violence.
Impact of residential schools, effects of colonialism on traditional values and
culture as well as structural victimization are some of the reasons.
Structural victimization is the concept of victimization that results from
predetermined social structures.
Structural victimization influences upbringing, education and socioeconomic
status, and may be a key factor in offenses such as child abuse.
Aboriginal Victimization in Canada
“A Review of Research on Criminal Victimization and First Nations, Metis and Inuit
Peoples 1990 to 2008” is an update of the original report entitled A Review of
Research on Criminal Victimization and First Nations, Metis and Inuit Peoples
1990 to 2001 (Chartrand and McKay 2006).
The review paid specific attention to demographic and social trends that have
been regarded as factors possible including high victimization rates.
It also investigated the under-reporting of victimization among Aboriginal people
and the high victimization rates among Aboriginal women, youth, and persons
with physical and mental health issues.
According to data from the 2004 General Social Survey on Victimization, 40% of
Aboriginal Canadians reported having been a victim of crime in the year leading
up to the survey compared to 28% of non-Aboriginal Canadians.
With respect to violent crime, Aboriginal people were three times more likely to
have been victimized compared to non-Aboriginal people (Brzozowski et al 2006)
These statistics confirm that Aboriginal people are disproportionately represented
as victims of crime in Canada.
Perpetrators of violence against Aboriginal people are most often other members
of the Aboriginal community such as spouses, relatives, or friends of the victim
and as such, victimization among Aboriginal people in Canada is often regarded as
a mirror image or Aboriginal offending.
A review of criminal justice studies on Aboriginal representation in the criminal
justice system reveals that the literature is largely offender focused.
While significant attention is spent addressing questions such as how to make the
criminal justice system more relevant for Aboriginal offenders, less attention has
been focused on Aboriginal victims of crime.
Criminogenic Factors
Research has identified a connection between certain demographic and social
factors and an elevated risk of victimization.
These factors include:
Being young (Lochner 2004)
The Aboriginal population in Canada is much younger on average
than other Canadians, with a mean age of just 27 compared to 40 for
the rest of Canada.
Almost half (48%) of the Aboriginal population is under the age of 25
(Statistics Canada 2008a)
Living in a lone-parent family situation (Stevenson et al 1998)
In terms of family composition, Aboriginal children are more likely
than non-Aboriginal children to live in lone-parent households.
Living common-law (Mihorean 2005)
High levels of unemployment (Raphael and Winter-Ebmer 2001)
Although Aboriginal Canadians have been making important gains in
educational achievement, they are still significantly underrepresented in educational attainment.
While 81% of the non-Aboriginal population aged 20 or older holds at
least a high school diploma, just 62% of the Aboriginal population in
that age group does (Statistics Canada 2008c)
The Aboriginal population is also an economically disadvantaged
population.
The unemployment rate is more than double that of the nonAboriginal population in Canada (15% compared to 6% – Statistics
Canada 2008b).
As a correlate, Aboriginal people make 33% less income per annum
on average than non-Aboriginal people (Statistics Canada 2008d).
The consumption of alcohol (Vanderburg et al 1995)
All these risk factors are highly apparent in the demographic and social conditions
of the Aboriginal population in Canada.
The disproportionately high rates of violent victimization experienced by
Aboriginal people can only be partially explained by the social and demographic
characteristics of that population.
All other factors being constant, the odds of being the victim of a violent crime is
approximately three times higher among Aboriginal people (Brzozowski et al
2006)
Under-Reporting of Victimization
The under-reporting of victimization, particularly for domestic violence is a
serious concern in Canada.
It is argued that in many Aboriginal communities the problem is far more acute.
LaPraire (1995) reported in her study of Aboriginal victimization in urban centres
that 74% of respondents who experienced family violence did not report their
victimization.
Case outcomes
Some studies have found that even when an incident of violence is reported by
Aboriginal victims and charges are laid, there is a higher rate of dismissed charges
or not guilty outcomes.
For example, the dismissal and discharge rate of Aboriginal people accused of
domestic violence was 60% compared to 44% of non-Aboriginal accused, mainly
due to a significant reluctance on the part of victims to attend court and testify
(Ursel 2001).
Hence, even when incidents of domestic violence are reported to police, these
charges are dropped more often for Aboriginal accused than for non-Aboriginal
accused.
Research reveals that Aboriginal women experience dramatically higher rates of
violence victimization than non-Aboriginal women (Brzozowski et al 2006).
Violence within the domestic context is the most pervasive form of victimization
experienced by Aboriginal women.
Nearly one quarter (24%) of Aboriginal women in Canada reported having been
assaulted by a current or former spouse, compared to 7% of non-Aboriginal
women (Brzozowski et al 2006).
Results from some other studies suggest that this figure may be as high as 90% in
some Aboriginal communities (Ontario Native Women’s Association 2007).
The literature shows that Aboriginal women consistently report a rate of partner
violence much higher than their non-Aboriginal counterparts, even after
controlling for relevant social variables. For instance, while living common law is
associated with a 13% greater risk of victimization for non-Aboriginal women, the
associated risk for Aboriginal women is 217% higher (Brownridge 2008).
Sexual assault against women is particularly prevalent in Northern Canada where
there is a much higher proportion of Aboriginal people in each of the territories
than in the provinces. In 2002 the rate of sexual assault in Nunavut was 96.1 for
every 10,000 people compared to the overall rate in Canada of 7.8 in every
10,000 people (Levan 2001).
Aboriginal women have also been found to be greatly over-represented as sex
trade workers compared to non-Aboriginal women (Oxman-Martinez et al 2005,
RCMP 2006).
In one study of the Vancouver sex trade, 52 of 101 women interviewed were
Aboriginal (Farley et al 2005). Most of these women reported both a history of
childhood sexual abuse by multiple perpetrators and a history of rape and other
assaults while working as prostitutes.
Victimization of Aboriginal Youth
There is some evidence suggesting that the victimization of Aboriginal youth is a
serious problem in some communities (Kingsley and Mark 2000).
Research reveals that there is a high correlation between childhood domestic
victimization and subsequent victimization and criminal activity later in life
(LassPrarie 1995).
Sexual abuse against Aboriginal children was also found to be quite prevalent.
Studies show that on average 25% to 50% of Aboriginal women were victims of
sexual abuse as children compared to a 20% to 25% average rate within the nonAboriginal population (Collin-Vezina et al 2009).
The experience of intra-familial victimization is linked to subsequent victimization
and criminal activity later in life.
One study showed that children exposed to violence were 10 to 17 times more
likely to have seriousemotional and behavioural problems when compared to
children who were raised in non-violent home environment (Dumont-Smith 2001,
11).
Entrance into the sex trade can also make youth more susceptible to
victimization. In fact, one study found that approximately 30% of youth employed
in the Canadian sex trade were Aboriginal (Koshan 2003).
Victimization of Aboriginal People with Physical and Mental Health Issues.
One study indicates that Aboriginal people have a disability rate that is double the
national rate for adults and three times the rate for people aged 15-34 (Human
Resources and Development Canada 2002).
One that has been the subject of increased attention is fetal alcohol spectrum
disorder (FASD).
According to the research, individuals with FASD are at an increased likelihood to
be involved in the criminal justice system (CJS) (Streissguth et al 1996).
The social and behavioural symptomology of individuals with FASD is very similar
to the effect of childhood exposure to violence in the family, as identified by
many health and social services and referred to in a report by the Aboriginal
Nurses Association of Canada (Dumont-Smith 2001).
Understanding High Rates of Victimization
The “trauma theory” has been the main explanation adopted by researchers for
the high rates of Aboriginal victimization.
The theory holds that the relatively recent victimization of Aboriginal peoples has
occurred not only to Aboriginal people as individuals but to Aboriginal people as a
society, because of the colonization process which saw communities losing
control over family and culture.
The trauma theory is the preferred theory in many studies examining family
violence in Aboriginal community but can easily be applied to a broader theory of
Aboriginal victimization (Ursel 2001).
Its effects are often explained as the root causes of social disorder in Aboriginal
societies where alcohol, suicide, abuse and victims of violence are symptoms of
the underlying traumatization.
The impacts of forced removal of children from their families and communities
and the abuse many endured in residential schools have been passed down
generationally.
Ontario Assistant Crown Attorney Rupert Ross (in Brant Casellano et al 2008)
describes how the residential school experience “set in motion an
intergenerational transfer of trauma that continues to cause significant
downstream damage to Aboriginal families, their children and their
grandchildren”.
Survivors of residential schools and their descendants alike report difficulty
forming trusting relationships with their spouses and family members.
Children growing up without such trusting relationships often develop an inability
to respond to stress without resorting to external stimuli such as destructive
addictions (Chansonneuve 2007).
The Cycle of Victimization
Many studies highlight that acts of violence are often committed by individuals
for whom violence has become normalized, having themselves been victimized,
particularly in childhood (VanRojas and Gretton 2007).
Increased victim support services may be a step towards breaking the cycle of
violence.
Levan (2003) describes significant gaps in the availability of victim services in the
territories, particularly outside of urban centres, as well as the inadequate
supports for volunteers and paid staff working in the few exiting victim service
organization.
While there have been improvements in the past several years, many challenges
remain in providing accessible and culturally relevant services for all Aboriginal
people who have experienced victimization.
“Victimization of Aboriginal People in Canada” from Statistics Canada suggested
that Aboriginal people in Canada were nearly three times as likely to experience
sexual assault in 2014 as non-Aboriginal Canadians.
It also found 9% of respondents reported experiencing spousal violence that year,
more than twice the rate of 4% in the non-Indigenous population.
The report was the first time that questions were asked about homelessness,
mental illness and child abuse.
The report did find that a smaller percentage of Aboriginal responders reported
being victims of crime in 2014 (285) from 2009 (380).
The Report compiled statistics on 8 specific types of crime: sexual assault,
robbery, physical assault, theft of personal, motor vehicle or household property,
breaking and entering and vandalism.
The higher rates of victimization were related to risk factors such as childhood
maltreatment, perceiving social disorder in one’s neighbourhood, homelessness,
substance abuse and poor mental health.
What is being done?
There is a need to look at Indigenous women and girls as equals.
Society needs to start viewing Indigenous women in a positive light and not
to be abused, taken advantage of, or exploited.
The Report surveyed 33,127 responses from provinces and 2,040 from the
territories.
Sentencing Circles
A sentencing circle is a community-directed process, conducted in partnership
with the CJS, to develop consensus on an appropriate sentencing plan that
addresses the concerns of all interested parties.
Sentencing circles use traditional circle rituals and structure to involve the victim,
victim supporters, the offender, offender supporters, judge and court personnel,
prosecutor, defence counsel, police and all interested community members.
Within the circle, people can speak from the heart in a shared search for
understanding of the event, and together identify the steps necessary to assist in
healing all affected parties and prevent future crimes.
Sentencing circles typically involve a multi-step procedure that includes:
(1) an application by the offender to participate in the circle process;
(2) a healing circle for the victim;
(3) a healing circle for the offender;
(4) a sentencing circle to develop consensus on the elements of a sentencing
plan; and
(5) follow-up circles to monitor the progress of the offender.
The sentencing plan may incorporate commitments by the system, community
and family members as well as by the offender.
Sentencing circles are used for adult and juvenile offenders with a variety of
offenses and have been used in both rural and urban settings.
Specifics of the circle process vary from community to community and are
designed locally to fit community needs and culture.
Goals of a sentencing circle:
Promote healing for all affected parties
Provide an opportunity for offender to make amends
Empower victims, community members, families and offenders by giving
them a voice and a shared responsibility in finding constructive resolution.
Address the underlying causes of criminal behaviour
Build a sense of community and its capacity for resolving conflict
Promote and share community values.
Implementation
A successful sentencing circle process depends upon a healthy partnership
between the formal justice system and the community.
Participants from both need training and skill building in the circle process,
peacemaking and consensus building.
The community can subsequently customize the circle process to its local
resources and culture.
It is important that the community’s planning process allows enough time for
strong relationships among justice professionals and community member to
develop.
Implementation procedures must be highly flexible because the circle process will
evolve over time based on the community’s knowledge and experience.
Sentencing circles are not appropriate for all offenders.
The connection of the offender to the community, the sincerity and nature of the
offender’s efforts to be healed, the input of victims and the dedication of the
offender’s support group are key factors in determining whether a case is
appropriate for the circle process.
Because communities vary in health and in their capacity to deal constructively
with conflict, representatives of the formal justice system must participate in
circles to ensure fair treatment of both victims and offenders.
Research
Very little research has been conducted on the effectiveness of sentencing circles.
One study conducted by Judge Barry Stuart (1996) indicated that fewer offenders
who had gone through the circle re-offended than offenders who were processed
by standard criminal justice practices.
Those who have been involved with circles report that circles empower
participants to resolve conflict in a manner that shares responsibility for
outcomes, generate constructive relationships, enhance respect and
understanding among all involved, and foster enduring innovative solutions.
Sentencing circles can be a valuable way of getting input and advice from the
community to help the judge set an appropriate and effective sentence.
The judge is not bound to accept the circle’s recommendations.
Sentencing judges must examine the unique factors which may have played a part
in bringing an Aboriginal offender before the courts and the types of available
sanctions and sentencing procedure, including sentence circles which may be
appropriate considering the offender’s Aboriginal heritage or identity.
Highway of Tears
From 1989 to 2006 nine young women went missing or were found murdered
along the 724 km length of Highway 16 – now commonly referred to as the
Highway of Tears.
All but one of these victims were Aboriginal women.
The RCMP’s investigation into the highway murders, referred to as Project EPANA, began in the fall of 2005.
In October 2007 the RCMP expanded the number of women in their investigation
to 18 and increased the total km to approx. 1500km which included the Highway
of Tears and parts of Highway 97 and Highway 5. The cases involved in the
project now ranged from 1969 to 2006.
There is still much debate over the exact number of women who have gone
missing in northern BC but many people living in the north believe that the
number exceeds 30.
The CSFS (Carrier Sekani Family Services) Highway of Tears initiative does not
share the same set of criteria for those on their Highway of Tears list. They
provide advocacy and support to all family members and friends that have lost a
loved one to violence.
Gladue
If you have been charged with a crime and are an Aboriginal person, there are
special cultural considerations that the court must take into account in assessing
your case. This applies to all Aboriginal peoples of Canada, including status and
non-status Indian, Inuit, and Métis and whether living on or off reserve.
What this means is that, as an Aboriginal offender, a restorative justice process
may be more appropriate for you. Such processes focus on healing those affected
by the criminal act, including the offender, and, as a result, are more in line with
traditional Aboriginal justice. Also, a restorative justice approach will often allow
for a solution with no jail time, which helps reduce the drastic overrepresentation of Aboriginals in Canadian jails.
Section 718.2(e) of the Criminal Code, as well as the Supreme Court of
Canada in R. v. Gladue, [1999] 1 S.C.R. 688 have stated that Judges should account
for these considerations when making sentencing decisions. Gladue asks judges
to apply a method of analysis that recognizes the adverse background cultural
impact factors that many Aboriginals face.
In a Gladue analysis these factors, if present in their personal history, work to
mitigate or reduce the culpability of offenders. Judges are then asked to consider
all reasonable alternatives to jail in light of this. Such an analysis, then, is more
likely to lead to a restorative justice remedy being used either in place of a jail
sentence or combined with a reduced term.
This does not, however, mean that all Aboriginal offenders automatically qualify
for lighter sentences than non-Aboriginal offenders. The principles of sentencing
apply to all offenders equally, and so in many situations such a remedy will not be
appropriate to the circumstances of the case.
Wagmatcook Court
In April 2018 the newest Nova Scotia provincial court opened in Wagmatcook.
It sits one day each week and was officially opened on June 21, National
Aboriginal Day.
It is a Wellness and Gladue court and it sits in Wagmatcook at the community
cultural centre.
It is the second Indigenous community to host a provincial court.
Eskasoni has hosted provincial court sittings for several years.
The Wagmatcook court pays close attention to Indigenous restorative justice
traditions and customs.
It will provide program to better support the needs of Indigenous people.
It will also service the needs for non-Indigenous people of Victoria Court.
The new court is used for arraignments, bail hearings, trials and sentencings but
will also offer more specialized services for Indigenous offenders.
The programs include a Gladue court.
The Gladue court employs Indigenous restorative justice traditions and customs
along with extensive community input such as sentencing circles.
The wellness court will be for offenders who plead guilty and are deemed at a
high risk to reoffend. The program examines root cause factors that result in an
individual coming into conflict with the law.
The sentencing process can be delayed for up to two years to allow the offender
an opportunity to complete a detailed healing plan.
Even the layout of the court is unique in that the usual judge’s bench is in the
shape of circle to reflect the Indigenous medicine wheel and the restorative
justice approach.

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