The Legal Treatment of Spousal Abuse - A Case of Sex Discrimination
![handle is hein.journals/unblj41 and id is 33 raw text is: THE LEGAL TREATMENT OF SPOUSAL ABUSE.
A CASE OF SEX DISCRIMINATION
Kathleen E. Mahoney
1. Introduction
In recent public address, Justice Beverly McLachlin asked the question, How
has the cnmimal-law treated women? She then answered in part:
... in the past, and to some extent in the present, our criminal law has failed to
accord equality to women. It has often placed the burden of social problems on
the backs of women through the so called feminine crimes related to reproduc
tion and sexuality. It has, at least until recently, failed to recognize the situation
in which many women, such as battered women, find themselves, and the way that
situation impacts on the traditional criminal law defences. Andit has, through the
misapplication of invalid stereotypes, often treated female offenders as less than
fully responsible and female victims with cruel msensitivity.
The problem of wife abuse is not new, nor is the unfairness in law and legal
decisions which have been brought to bear upon it.
For centuries, our. society and others have consistently condoned and
legitimized male battery of women. This has been done directly through laws and
policies which expressly allowed for it; and indirectly, through custom, procedures
and discretionary decisions which ignored, trivialized or blamed victims for this use
of violence to secure subordination.
When women are battered, they are choked, kicked, bitten, punched, sexually
assaulted, threatened and hurt by weapons. In a study2 of 100 battered women,
all had been bruised, but 44 had also received lacerations of which 17 were due
to attack with sharp instrument such as bottle, knife or razor. Twenty-six had
their noses, teeth or ribs fractured and 8 had fractures of other bones, ranging
from fingers and arms to jaw and skull. Two had their jaws dislocated and two
-others had similar shoulder injuries. Retinal damage was done to two women and
one was rendered an epileptic as a result ofhead and brain injuries. In 19 cases,,
there were allegations of strangulation attempts. Burns and scalds occurred in
eleven cases, bites in seven. All of the.100 women m the study had been attacked
with clenched fists, but 39 reported that they were regularly kicked as well. In 42
cases, a weapon was used on them, usually the first available object, but in 15
Faculty of Law, University of Calgary.
iHon. B.M. McLarhlin, Crime and Women Feminine Equality and he Crimnal Law, (Address to
the Elizabeth Fry Society, 17 April 1991) [unpublished].
2jJ. Gayford, Battered Wives n JP Martin, ed., Violence and the Family (New York: John Wiley
and Sons, 1978) at 21-22:](ViewImageLocal?handle=hein.journals/unblj41&div=6&collection=&method=preview&ext=.png&size=3)
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The Legal Treatment of Spousal Abuse - A Case of Sex Discrimination
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