Crime & Ethos (2023-2024) Volume I

Editor-in-Chief

Johne Quiambao

Deputy Editor

Victoria Burman

Senior Executive Editors

Emma Girvan

Alexander Kulessa

Kobe Woo

Junior Executive Editors

Emma Canning

Hailey Ernst

Tiffany Kwan

Keira Phillips

Copy Editors

Ashley Ahadjitse

Gabriella Contrino

Lyla Davis

Macera Ndambi

Alysia Reitano

Graphic Designer

Fatima Grace Mostoles

Social Media Coordinator

McKenna Bellemare

I am delighted to present to you the inaugural issue of Crime & Ethos. The journey of this journal began with a realization that no undergraduate student in the Criminology program has ever published their honours thesis before. This revelation was a call to action, leading to the birth of our journal.

I hope this journal creates a community within the Carleton student body, where we can celebrate the amazing work of undergraduate students. None of this would have become reality without the indispensable support of our supervisors and the dedicated efforts of the executive team. I would like to say a special thank you to everyone who has engaged with the journal in any way. Knowing that students are interested in this journal means so much to me.

DEAR READERS, SINCERELY, JOHNE QUIAMBAO,

EDITOR-IN-CHIEF

aletterfromthefounder

MESS co

Dear readers,

Thank you for taking the time to read our inaugural edition of Crime & Ethos. As undergraduate students, we rarely get the opportunity to share our research to a broad audience. Our voices often unheard, and under-appreciated. We made this journal to highlight student voices, and to recognize that undergraduate students are just as capable of contributing to the field of criminology. In a time rife with violence, oppression, an conflict, it is our duty to come together in solidarity to promote broader understandings of crime and justice. It is my hope that by sharing the works of our incredible authors, we can inspire our readers to feel empowered in their ability to contribute and change the current landscapeofinjustice.

Sincerely, Victoria Burman

Dear readers,

As a Senior Editor and Co-Founder, it is with great pleasure that we welcome you to delve into the pages of our publication. The articles and works within this journal represent the culmination of undergraduate academic scholarship at Carleton and within the discipline of Criminology. Our contributors offer unique insights into various aspects of criminology, showcasing diverse perspectives and voices. In a world constantly challenging the complexities of crime and justice, it is crucial to engage in critical discourse and analysis. We hope this journal inspires curiosity, critical thinking, and informative dialogue. I hope you enjoy reading this journal as much as we enjoyed creating it!

Sincerely, Emma Girvan

Dear readers,

This journal provides a platform for students to explore the oftenambiguous nature of crime and justice, fostering a diverse environment that embraces critical perspectives. Encouraging students to tackle inherently controversial topics and engage in thought-provoking discussions, the journal recognizes the value of discomfort as a catalyst for personal growth. Standing on the shoulders of giants, this journal is unique as it champions the minds of undergraduate students, as opposed to seasoned academics, with the intent to bring novel insight into the ongoing dynamic that Criminology in its entirety encapsulates. I look forward to your interactions with the publications, not only to have you learn more about previously misunderstood issues but also to have you develop your own thoughts and opinions on them.

Sincerely,

Alexander Kulessa

Dear readers,

It is with great excitement, that we proudly present the inaugural edition of 'Crime & Ethos' . I'm immensely proud of everyone who took part in this project. It has been so fulfilling to witness the publication of student work. Our journey has been marked by tireless dedication, and seeing the student community come together in a peer-reviewed journal is nothing short of inspiring. Each piece reflects hard work and the collective ethos we've fostered a commitment to exploring the multifaceted intersections of criminology. This is a representation of the power of collaboration and the enduring relevance of scholarly inquiry in shaping our understanding within academia.

Sincerely,

Kobe Woo

ABOUT US

CRIME ETHOS & Est. 2024

“Crime & Ethos” aims to capture the essence of our undergraduate focused journal by intertwining the study of Criminology with the rhetorical concept of ethos, which represents character and credibility in communication. We encourage a multidisciplinary approach, appealing to students in fields like law, sociology, psychology, and those alike. Our journal articulates an ethos that makes sense of undergraduate generational beliefs and understanding of crime. Readers can expect a thematic intersection of a critical examination in the discipline of criminology and the communication of undergraduate academic writing.

criticalreflections

Anti-Judaism versus Anti-Semitism: How to Analyze Hatred

by Pamela Steele-Vander Kooy Introduction

Keywords: Anti-Semitism, Anti-Judaism, Deculturalization, Genocide, Prejudice.

With Anti-Semitism on the rise and an all too familiar venom toward Jewish people not only taking the forefront, but gaining momentum at an international level, I believe it is important to look at the foundation of this hatred. Where did it stem from and what fuels it? In this paper I will look at the similarities between Anti-Judaism and Anti-Semitism and attempt to determine whether utilizing two separate terms continues to make sense in our modern age, or if discussing an all encompassing hate under the umbrella of one more modern term is appropriate, and if so, why that is. I will conclude that Anti-Semitism has been present alongside and in connection with Anti-Judaism since the Helenistic era and they have been used in conjunction since. Thus, using Anti-Semitism as an umbrella term could effectively convey the harms and prejudices that Jewish individuals have and continue to face to this day while streamlining the available vocabulary for scholars and laymans alike.

Understanding Anti-Judaism & Anti-Semitism

When discussing Anti-Judaism we are referencing a religious prejudice against Judaism, that is specific to the beliefs and practices of Judaism as a religion. Unlike Anti-Judaism, Anti-Semitism is not only a prejudice toward Jewish religion, but a hatred toward Jewish people as a race (Kaufman, 2017). Contrary to popular understanding, Anti-Semitic rhetoric against Jewish people did not start with the Nazi era. Although scholars discuss the origins of Anti-Semitic behaviour as being traced to the middle ages, there are descriptions of the Roman Emperor written in Tacitus’s Historiae 70 CE, justifying state violence by spreading antiJewish rhetoric after the attack on Judea (Kaufman, 2017). It is within the way that the Roman Emperor took aim at Jewish people, describing

them as “hateful to the gods” (Kaufman, 2017), as well as “preposterous and mean” (Kaufman, 2017), that laid the foundation for many AntiSemitic stereotypes. Yes, Tacitus wrote about the religious practices of Jewish people being used as ammunition for anger and frustration with remarks about the “sacrilegious rituals ”(Kaufman, 2017) of Jewish people and how these rituals were designed specifically to offend other religions. However, he also wrote about their characteristics and communal behaviours being used as weapons against them with remarks about their “cliquish” (Kaufman, 2017) behaviours, their financial wealth, and their “attempt to outbreed real Romans” (Kaufman, 2017). What may have begun as frustration toward Judaism and an anger for not conforming to and accepting the Roman Gods ended in an outright hatred for Jewish people. An intolerance of not only their religion, but Jewish people as a race, which resulted in riots where thousands of Jewish individuals were killed because of their status as “enemies” or “spies” (Berger, 1943 p.24). The Anti-Judaism and Anti-Semitism from the Hellenistic age is not as well documented as the very blatant rhetoric in the middle ages and for this reason many reference the beginning of Anti-Semitism as having roots in the early middle ages (BerenBaum, 2022), when it is evident they were clearly intertwined before then.

In medieval Europe, Jewish people were denied the ability to have citizenship which in turn denied them any of the rights that came with citizenship. Jewish individuals were not allowed to have a position in the government or the military, and were excluded from many other professions (2Butler, 2022). There was a wave of Anti-Semetic violence that started in 1096 in France with the Knights of the First Crusade under the rule of the Holy Roman Empire which included massacres in both Worms and Trier, now both in Germany (Berenbaum, 2022; Brustein, 2003). There were accusations of blood libel false allegations that Jewish people murdered Christian children in order to use their blood in religious rituals (Eislund, 2022) and host desecration that led to the murder of Jewish individuals (Pfefferkorn, 2022). Europe was home to many violent pogroms violent anti-Jewish riots that aimed to massacre

or expel Jewish people for many years. The first is believed to be in Odessa, Russia in 1821. Tens of thousands of Jewish people were murdered in violent pogroms in Poland between 1918 and 1920 (1Butler, 2022; Brustein, 2003 p.337). Once again, the targeting of Jewish individuals and communities was a result of both religious and cultural hatred and messaging, which intertwined to form an identity despised by the majority.

The Holocaust

Pogroms continued in Europe for over one hundred years setting the blood soaked foundation for the travesty that would be the Holocaust. Once Adolf Hitler took control of Germany he incited periods of violence against Jewish individuals which were not only tolerated, but encouraged. Hitler and the Nazi leaders believed that this street violence would desensitize the German population toward the Anti-Semitic courses of action that would be implemented to restore order (United States Holocaust Memorial Museum, 2012). One example of this would be Kristallnacht, a traumatic pogrom that was orchestrated nationwide on November 9th and 10th of 1938, in Nazi Germany. In that short span of time 267 synagogues were damaged, and 7,000 Jewish businesses were ransacked and destroyed. Jewish men aged 16 to 60 were gathered and arrested, totalling to 30,000 people, and then sent to the concentration camps that were used for political enemies (1Butler, 2022). Kristallnacht would end up being the precursor to Hitler’s Final Solution and the Holocaust, with the goal of the Final Solution was annihilation of all Jewish people in Europe. Hitler and the Nazi leaders aimed to kill 11 million Jewish individuals while implementing the Final Solution (1Butler, 2022), through copious amounts of torture, hatred, and murder, which they succeeded in killing 6 million Jewish people during the Holocaust (United States Holocaust Memorial Museum, 2012). A campaign which started by highlighting racial and religious differences within the population leading to a travesty that continues to haunt the international Jewish community.

Anti-Semitism in the Modern Era

Just as Anti-Semitism did not start with the Nazi era, neither did it disappear with the end of World War II. 21st century Anti-Semitism is prevalent in Western Europe and in Muslim Nations, but it is also building frightening momentum in North America. From the vandalism and desecration of Jewish cemeteries, the hate propaganda flashing across our television screens and twitter feeds, with the extremist attacks on Jewish businesses, to the murder of Jewish people attending synagogue (United States Holocaust Memorial Museum, 2012); these hate filled attacks are becoming frequent and escalating in severity. We are living in an age where people feel safe and emboldened to speak openly about their Anti-Semitic beliefs. All you have to do is swipe your phone screen to see the latest onslaught of vile hatred coming from the likes of Kanye West, Alex Jones, and Nick Fuentes (Romano, 2022). In Ottawa, if you happen to follow Dr. Nili Kaplan-Myrth or Dr. Yoni Freedhoff on Twitter you will see the AntiSemitic rhetoric and hate that is continuously thrown at them almost daily. This open hatred and terrifying momentum of Anti-Semitism is something that should be taken watch of; something that we need to be openly talking about, passionately calling out, while actively trying to change. As King Charles said, “Years after the liberation of Auschwitz, hatred and intolerance still lurk in the human heart, still tell new lies, adopt disguises,

and still seek new victims” (TOI Staff, 2022). As much as the World would like to believe that Anti-Semitism is no longer relevant or dangerous, the reality is that Anti-Semitism is as real and powerful as it was and has been since the Helenistic era, and it poses a very real threat to society. Unfortunately, there is a hesitance in both societal and academic fields to name and recognize any anti-Semitic acts due to a lack of understanding around what acts and beliefs fall under anti-Semitism as opposed to judeophobia or anti-Judaism. There is also a general reluctance to recognize anti-Semitic acts in light of political controversy and latent antiSemitic prejudice. As Kenneth Marcus (2015) argues:

The reluctance of Western observers to acknowledge Jewhatred by its proper name is sometimes perplexing, but it recurs throughout the world, especially when the perpetrators are themselves members of persecuted groups or when the State of Israel is even remotely implicated (3)

The possibility of anti-Semitism still being present is essentially ignored by the majority of the world, to the mass detriment of Jewish individuals. It is essential in this light to choose a comprehensive label for antiSemitism and anti-Judaism in order to broaden awareness and reduce the ability to ignore anti-Semitic hate.

Conclusion

For these reasons, I argue that religious scholarship should adopt AntiSemitism as an umbrella term under which the traditionally separate terms of Anti-Judaism and Anti-Semitism may fall. Throughout history these two terms have been inseparable, with their effects impacting and determining one another in instances of severe discrimination and violence. Each is educated and influenced by the other, therefore using one term without referencing the other does a disservice to Jewish history and the ongoing violence against Jewish people. In light of the growing sentiment of hatred against Jewish people, especially in the Western world, further ignorance of this issue can only be defined as intentional negligence.

References

BerenBaum, M (2022) “Anti-Semitism ” Encyclopedia Britannica, Inc , November 10th, 2022. https://billtammeus.typepad.com/my weblog/anti-judaism

-in-christian-history.html

Berger, D. (1997). History and hate the dimensions of anti-Semitism (1st ed.). Jewish Publication Society

Brustein, W. (2003). Roots of hate anti-semitism in Europe before the Holocaust. Cambridge University Press.

Butler, D (2022) “Module 5: Mini Lecture 3: Anti-Jewish Narratives, Practices and Violence.” RELI2110A Slides at Carleton University, Ottawa, Fall 2022.

Butler, D. (2022). “Module 11: Lecture 1: From Christian Anti-Judaism to Modern Antisemitism.” RELI2110A Slides at Carleton University, Ottawa, Fall 2022.

Eislund, S (2022) “The Pogroms of 1189 and 1190 ” Historic UK Historic England Publishing, Fall 2022.https://www.historic-uk.com/HistoryUK /HistoryofEngland/Pogroms-1189-1190/

Kaufman, A. S. (2017). “Anti-Semtism Is Older Than You Think.” The Public Medievalist. The Public Medievalist, May 23rd, 2017

https://www.publicmedievalist.com/anti-semitism-older-think/

Marcus, K. L. (2015). The definition of anti-Semitism. Oxford University Press. Pfefferkorn, J (2022) “Desecration of Host ” Jewish Virtual Library American-Israeli Cooperative Enterprise, Fall 2022. https://www.jewishvirtuallibrary.org/host-desecration-of Romano, A. (2022). “Kanye West’s antisemitic spiral, explained.” Vox. Vox Media, Inc., December 2, 2022. https://www.vox.com/culture/23400851/kanye-west -antisemitism-hitler-praise

Tammeus, B. “Anti-Judaism In Christian History.” Bill’s Faith Matters Blog. Front Edge Publishing, Fall 2022. https://billtammeus.typepad.com/my weblog/anti-judaism -in-christian-history html

TOI Staff. (2022). “Jewish and universal tragedy: Full text of Prince Charles Holocaust forum speech.” The Times Of Israel, (2022). https://www.timesofisrael.com/jewish -and-universal-tragedy-full-text-of-prince-charles-holocaust-forum-speech/ United States Holocaust Memorial Museum (2022) “Antisemitism Today ” United States Holocaust Memorial Museum, Fall 2022.

https://www.ushmm.org/antisemitism/what-is-antisemitism/antisemitism-today United States Holocaust Memorial Museum (2012). “Introduction to the Holocaust.” United States Holocaust Memorial Museum, November 5th, 2012

https://encyclopedia.ushmm.org/content/en/article/introduction-to-the-holocaust

Recommendations for Supporting Female Victims of Intimate Partner Violence

by: Hailey Ernst

Keywords: Intimate Partner Violence (IPV), Victim-Centred Approach, IPV Perpetrator Classification System, Victim, Violence, Intervention, Perpetrator

Executive Summary

This brief demonstrates that the current criminal justice responses to women experiencing intimate partner violence (IPV) are insufficient in addressing the needs of victims. Using a victim-centred approach, the implementation of specialized IPV support workers addresses the lack of consistency and variety in women’s shelter services. In this approach, the roles of these workers will vary depending on the needs of the woman and after gaining insight into how she wants to proceed. Certain aspects of the proposed action plans require further coordination with other agencies, such as legal aid services or the criminal justice system. Additionally, the creation of an IPV perpetrator classification system based on the subtyping posited by Holtzworth-Munroe and Stuart will aid in providing individualized services and have criminal justice-related benefits.

Introduction

The high rate of violence against women, especially IPV, is an ongoing concern of many social institutions. As a nationwide organization dedicated to ending violence against women, the Women’s Shelter Association has the potential to create meaningful change through the implementation of evidence-informed programs and practices aimed at supporting victims of IPV. As will be demonstrated throughout this paper, the implementation of specially trained IPV support workers and a semistructured action plan will benefit many women at risk of IPV. In addition, the creation of an IPV perpetrator classification system will aid the police, court system, and non-profit organizations in many ways, leading to the eventual decrease in the frequency of IPV.

IPV Perpetrators and Efficacy of Arrest

Efforts to minimize the occurrence of IPV have largely been criminal justice responses, such as mandatory arrest policies and mandatory prosecution (Stewart, 2001, p. 454). Indeed, studies show that the arrest of IPV perpetrators reduces subsequent aggression (Maxwell et al., 2001, p. 2);however, new evidence from the Spousal Assault Replication Program suggests a majority of batterers discontinued the use of violence against their female partners even without an arrest (Maxwell et al., 2001, p. 2). In addition, the research found that a minority of perpetrators continued to commit IPV regardless of the type of police intervention (Maxwell et al., 2001, p. 13). An explanation of this phenomenon can be provided using Holtzworth-Munroe and Stuart’s proposed subtyping of IPV perpetrators. This classification system organizes batterers into three groups: familyonly, dysphoric/borderline, and violent/antisocial (Stewart, 2001, p. 450). Holtzworth-Munroe and Stuart suggest arrest serves as a deterrent for family-only perpetrators, while the other two groups are considered at high risk of reoffending (Stewart, 2001, p. 451). This subtyping can aid in focusing efforts and resources towards those who are considered at high risk of reoffending and their female partners. Further development of this classification system is necessary in order to be practical; however, its implementation into police practice has many potential benefits that will be discussed below.

Victim-centred Approach

There have recently been arguments advocating to limit the role of victims of IPV in criminal proceedings (Stewart, 2001, p. 454), suggesting a lack of prosecution of batterers contributes to the high rate of IPV. This has led to the introduction of policies such as mandatory prosecution and the compelling of victims to testify (Stewart, 2001, p. 454). This avenue of reform completely ignores identified best practice guidelines for supporting victims of crime. The Office of Justice Programs in the Minnesota Department of Public Safety identified victim-centred practices informed by the needs and voices of victims as a key element in assisting

individuals impacted by crime (Best Practice Guidelines: Crime Victim Services, 2010, p. 4). Continued efforts to remove victims of IPV from the court process demonstrates an advancement of the goals of the criminal justice system, rather than the goals of women experiencing violence. Instead, approaches to decrease the prevalence of IPV should be informed by the needs of victimized women. Interviews with victims of IPV have shown that women want the men arrested in less than a third of the cases (Stewart, 2001, p. 456). Most women contacting the police seek services other than arrest, such as a defusal of the situation, information regarding services, and support (Stewart, 2001, p. 456). In addition, many women do not wish to end their relationships and hope to receive help in managing their situations (Stewart, 2001, p. 456). If female victims of IPV are commonly seeking social services from the police, then an appropriate response is to look towards the social services sector to implement meaningful solutions.

Women’s Shelters

Women’s shelters play an integral role in decreasing the prevalence of IPV. They aim to offer services beyond a safe place to sleep, such as counselling, parenting classes, and mental health services (Shelters: More than a Refuge from Violence, 2023). However, many programs are specific to certain shelters and largely focus on finding housing or attending education (Shelters: More than a Refuge from Violence, 2023). In a study concerning the evaluation of shelters for abused women, Wathen et al. collected information regarding the various services offered by sixty-eight women’s shelters in Ontario, Canada (2015, p. 125). Results showed that of the ten identified core services, only two were offered in over 90% of shelters, with most services being offered in less than 70% of shelters (Wathen et al., 2015, p. 133). In order to create significant change, access to services needs to be provided consistently across communities. The implementation of specially trained IPV support workers and semistructured action plans will provide a solution to this problem.

Specialized IPV Support Workers

The level of intimacy between the victim and perpetrator is a unique feature of IPV, thus distinguishing these women from victims of other crimes (Wathen et al., 2015, p. 453). In the article First Contact Social Work: Responding to Domestic and Family Violence, Mandara et al. recognize the distinct needs of victims of IPV and highlight the importance of specialized training and ongoing professional development for those working with these individuals (2023, p. 600). This supports the need for workers specifically trained to support and provide services for women experiencing IPV, differentiating them from victim service workers and social workers.

Specialized IPV support workers will be based in women’s shelters and follow a semistructured action plan described below. Placing these workers in shelters will increase knowledge surrounding the variety of services offered at women’s shelters and transform their image to be more than a safe place to sleep. Police officers responding to IPV calls would be mandated to inform women of these workers and provide transportation if necessary.

The role of these workers begins with an initial interview to gain insight into the woman’s situation and to identify any unique individual or cultural needs. Information regarding the perpetrator of violence will also

be collected to determine their IPV subgroup classification discussed earlier. Using this, the IPV worker will be able to identify the risk level of subsequent acts of violence and direct resources accordingly. From this interview, the workers will provide or recommend services specific to how the woman wants to proceed. This will be one of three ways: stay in the relationship, leave the relationship with no criminal justice involvement, or proceed with the prosecution of the perpetrator.

If the woman chooses to stay in the relationship, the IPV support worker will help her create a safety plan, organize a temporary stay at the shelter if needed, and connect her with various programs and therapies. Safety plans are helpful tools in protecting victims of IPV and increasing feelings of safety among women (Murray et al., 2015, paras. 8–11). In addition, this safety plan will be informed by the perpetrator's subtype classification, allowing for a more individualized plan, and accounting for factors related to the abuser.

As previously mentioned, a majority of batterers do not re-offend after intervention methods other than arrest such as separation or counselling (Maxwell et al., 2001, p. 2). Therefore, a short-term stay at the shelter will decrease the chances the women will experience additional acts of violence and therapies serve as a promising avenue for mitigating violence. IPV workers must

consider the cultural needs of victims and the distinct service needs of those facing language barriers (Belur, 2008, p. 440). For example, Indigenous women benefit more from long-term holistic approaches rather than traditionally Western therapeutic approaches (Johnson & Kapoor, 2013, p. 5), thus requiring a different recommendation of programs and therapies.

If the woman chooses to leave the relationship without prosecution of the perpetrator, the IPV worker can provide a variety of services applicable to the woman’s situation in addition to those already mentioned. They will organize a long-term stay at the shelter and facilitate access to secondary housing if needed. They can recommend and connect women with long-term support services and education programs if needed. IPV workers will also be able to assist women in applying for a restraining order if desired.

With the recent COVID-19 pandemic, the court system has received significant technological updates to provide court services during lockdown. With these advancements in mind, women’s shelters and the court system should work together to provide a streamlined process that allows IPV workers to assist women in filing applications for restraining orders. In addition, women’s shelters should coordinate with legal aid services to provide free consultation certificates for women experiencing IPV. IPV workers would be able to issue these certificates to women who require the advice of a family, or potentially immigration, lawyer. Currently, Legal Aid Ontario has a program similar to this for victims of IPV however, availability in certain communities is limited (Domestic Violence, 2023). This service must be made easily accessible in all communities to ensure no victims of IPV experience financial barriers to leaving an abusive relationship.

If the woman chooses to proceed with the prosecution of the perpetrator, IPV workers will act as an intermediary between the victim and police in addition to providing the services mentioned above. It is here that the offender classification system is most beneficial. IPV workers can communicate the perpetrator’s subtype to the police, thus providing relevant factors associated with that particular group, such as level of risk, recommended interventions, etc.

IPVPerpetratorClassificationSystem

ThecreationofanIPVperpetratorclassificationsystemcanaidpoliceindetermining how to proceed with specific perpetrators after receiving information from IPV workers.Inaddition,furtherresearchconcerningthetopicofIPVperpetratorsubtypes can inform new police policies regarding best practices for identifying and handling specific offenders. Furthermore, this classification can also help during the court process. Many victims of IPV do not proceed with prosecution because they feel the outcome of the criminal justice process is not worth the risk (Stewart, 2001, p. 455). These women felt the sentences were lenient and inappropriate (Stewart, 2001, p. 455). Implementing the classification system into the court process can aid the court in justifying higher sentences for higher-risk offenders. This is similar to processes currently in place for the sentencing of offenders; however, this would be unique to perpetratorsofIPV.Thiswouldlikelyincreasegeneralandspecificdeterrencetowards the committal of IPV. In addition, it would increase public confidence in the criminal justicesystem,especiallyforvictimsofIPV.

Finally,concernshavebeenraised,bothbyacademicsandvictimsofIPV,regarding thelackofsupportandtreatmentalternativesforperpetratorsofIPV(Stewart,2001,p. 455). This classification system will help perpetrators receive individualized support basedontheneedsandinterventionmethodsspecifictotheirsubtype.

Conclusion

In addressing the issue of IPV, efforts have focused on advancing the goals of the criminal justice system rather than using a victim-centred approach. Looking to implement social service-based solutions is an approach informed by the needs of female victims of IPV. Women’s shelters in Ontario lack consistency in programming and do not address many needs of women experiencing violence. The implementation of specially trained IPV support workers and semistructured action plans will address the weaknesses of women’s shelter programming. In addition, further research into IPV perpetrator subtypes and the creation of a classification system will allow for many improvements to be made in existing IPV procedures. Strategies to build best practices in supporting victims of IPV is an ongoing process requiring a victim-centred approach and inter-agency collaboration to create meaningful change.

MEDIUMSartistic

Affective Borders: The Emotionalization of Crimmigration

by Isabella Hudak

Through the analysis of occupants of space and the determinants of people as “settled” or “unsettled”, this collage illustrates how fear and disgust underpin the targeted criminalization of Muslim immigrants in the United States after the events of 9/11 Within the realm of crimmigration and affective borders, emotions of fear and disgust are integral to the criminalization of Muslim immigrants. Recognizing affective borders as an emotional response that extends beyond tangible boundaries, the collage emphasizes everyday borders of public surveillance and policing in spaces occupied by immigrants This collage highlights the intersections of bodies, borders, and spaces, showcasing different types of media images to represent movements for and against Muslim immigrants. The use of various media forms, such as comic strips, real-life imagery, and animations is significant as it provokes emotional responses and symbolism

For example, comics and animation artwork facilitate abstract viewership whereas real-life images can evoke a sense of reality. Combining different types of media and images allows for complex layers of meaning and interpretation for the viewer.

Furthermore, the torn photographs and graphic designs in the collage display overwhelming disarray, depicting space as confining to unwelcome immigrants. By overcrowding the images, the collage represents the fear and disgust provoked from Muslim immigrants in the US, promoting a sense of disorder and “belief that things are out of control” (Walby & Spencer, 2011) The collage illustrates “unsettled” immigrants through images of

detention and community surveillance, encompassing the presence of Muslim immigrants as a threat to security Colour in this collage is significant to the analysis of the images. For example, the colour red is highlighted throughout various images as a symbolic colour. Red represents themes of danger and fear among Muslim identities, illustrating Muslims as universally “dangerous” This use of colour promotes exclusion and surveillance of Muslim immigrants as Ahmed theorizes that the fixation on others transforms them into “objects of ‘our feeling’” (2004) It reaffirms the perceived danger or threat of Muslim immigrants as their identity is stripped and formed to shape the fear and disgust constructed by “settled” people. In addition, colourful images are concentrated at the top of the collage, dominating over the muted, dull colours of the remaining images This represents Muslim identities and movements for Muslim inclusion as rising above “settled”, black and white, society. Morevoer, surveillance and state control over Muslim immigrants is presented as a common theme in the collage This is represented through the incorporation of borders, guards, fences, shadows, and eyes. This theme emphasizes how the security and safety of “deserving” citizens takes precedence over Muslim immigrants, allocating “dangerous” and “threatening” stereotypes to Muslims in fear of terrorism. It argues immigrants as an ongoing threat of violence, thereby alluding to the importance of discrimination and continuous vigilance and surveillance to identify and counter potential threats

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Cipriani, L. (2019). Muslim residents walk past slurs painted on the walls of a mosque in the town of Saint-Étienne in central France. [Photograph].

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ROTA (2021). Two Decades after the 911 Attacks, British Muslims still feel the impact [Digital Image] https://www rota org uk/2021/09/13/two-decades-after-911-attacks-british-muslims-still-feelimpact/

Rouzbehani, R. (2021). Bigotry, Part II. [Digital Image].

https://www roshirouzbehani com/#/bigotry-the-washington-post/ Tama, M. (2022). Immigrants wait in line to be processed by the U.S. Border Patrol. [Photograph].

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U S Office of Doris Matsui (2019) Women and children lie on the floor amid space blankets behind cyclone fencing at the Central Processing Center in McAllen, Texas ,on July 13. [Photograph] https://www upi com/Top News/US/2019/08/08/Muslim-initiative-raises-13000-torelease-detained-migrant-parents/5211565291088/

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RESEARCH papers

The Continuation of Overrepresentation in Canadian

Corrections: The Failure of Risk Assessments and the Misuse of Solitary Confinement with Indigenous Offenders

by: Isabella McInnis

Keywords: Colonialism, Overrepresentation, Rehabilitation, Recidivism, Discrimination

Introduction

Canada’s history of colonialism has had a longstanding impact on Indigenous peoples. Canadian society is familiar with past colonial practices and policies that actively discriminated against and attempted to assimilate Indigenous peoples such as provisions within The Indian Act, residential schools and the Sixties Scoop. However, fewer people are familiar with the modern discrimination Indigenous peoples are facing that is caused by current policies and practices. Specifically, the institutions that make up the Canadian criminal justice system continue to discriminate against Indigenous persons, resulting in their overrepresentation. Indigenous peoples in Canada make up approximately 4% of the general population but approximately 30% of the provincial, territorial and federal admissions to adult custody (Government of Canada, 2019). Despite the rate of people being federally sentenced remaining consistent over the last few decades, the rate of federally sentenced Indigenous peoples has increased by 50% and the number of federally sentenced Indigenous women has increased by 74% (McGuire & Murdoch, 2021). The overrepresentation of Indigenous peoples within the criminal justice system is an extremely important, complicated and layered issue that is intertwined with the impacts and continuation of colonialism. The direct link between the overrepresentation in the criminal justice system and the impact of colonization has been recognized by the Supreme Court of Canada in the cases of R. v. Gladue and R. v. Ipeelee (Hart, 2016). In response to this recognition, attempts were made to address the overrepresentation of Indigenous peoples, such as the creation of Gladue reports and the implementation of s. 718.2(e) of the Criminal Code.

Gladue reports contain information on the background of an Indigenous offender, including family abuse, substance abuse problems, intergenerational traumas and much more (R. v. Gladue, 1999). Section 718.2(e) requires the court to consider all other potential sentences aside from custody for Indigenous offenders when appropriate (Criminal Code, RSC 1985, c C-46). However, these attempts are proven to have failed as the rates of Indigenous admissions into custody are increasing (Government of Canada, 2019). One significant issue with these attempts is that they exclusively focus on before an Indigenous offender is sentenced. They do not address the experience and discrimination Indigenous offenders face in custody that contributes to recidivism and maintains the cycle of overrepresentation. Therefore, this paper will argue that there has been a failure to address systemic reasons for the overrepresentation of Indigenous persons by administering risk assessment tools that are discriminatory and culturally invalid and by disproportionately using administrative segregation with Indigenous offenders. Both of these problems cause significant barriers to rehabilitation and result in recidivism, or the continuation of Indigenous overrepresentation in the criminal justice system.

This paper first explains what risk assessment tools are and how they are used, followed by their discriminatory effects against Indigenous peoples and the implications this has on their rehabilitation and reintegration to society. Next, it will discuss what solitary confinement is in a Canadian context, how it is used disproportionately against Indigenous offenders and the barriers this has to their rehabilitation and reintegration.

Risk Assessment Tools: What Are Risk Assessment Tools?:

Risk assessments are conducted by corrections officers by using tools to evaluate offenders based on their security risk and criminogenic needs (Martel et al., 2011). They are used to make an informed judgement about an offender's likelihood of engaging in violent behaviour, recidivism, and

their level of threat to public safety or safety within the institution (Barmaki, 2023). The assessments consist of a number of items or questions, typically related to the Central Eight Risk Factors (Gutierrez et al., 2017). The Central Eight risk factors are pro criminal attitudes, procriminal associates, criminal history, employment/school problems, marriage/family problems, substance abuse, pro criminal personality and poor use of leisure time (Gutierrez et al., 2017). The risk assessments influence the treatment plan that will be created for the specific offender (Martel et al., 2011). Risk assessments are key in making decisions in security classification (minimum/medium/maximum), sentencing, parole decisions (when to release), treatment needs (programming), and supervision intensity (Gutierrez et al., 2017). Some examples of commonly used risk assessment tools include the LSI-OR, Static-99R, SIR-R1 and the RRASOR.

How Are Risk Assessment Tools Discriminatory?

Risk assessment tools are discriminatory because they are culturally invalid and systematically score Indigenous offenders higher than white offenders. Firstly, risk assessment tools were developed in North America for general offending populations and psychiatric patients who were nonIndigenous (Martel et al., 2011). Therefore, there is a lack of empirical support on the predictive validity of existing risk assessment tools on Indigenous offenders. The application of rules and research done by white people on white people to control and classify Indigenous peoples is an inherently racist and colonial problem in itself.

Furthermore, the Supreme Court of Canada confirmed the lack of cross cultural validity of risk assessment tools Ewert v. Canada. The court ordered that Corrections Services Canada must conduct research on the cross-cultural variance and validity of risk assessment tools being applied to Indigenous offenders (McGuire & Murdoch, 2021). However, despite the ruling, CSC still has not developed a risk assessment tool specifically for Indigenous offenders (McGuire & Murdoch, 2021). This is extremely

problematic because the unique and extensive criminogenic needs that Indigenous offenders have as a result of the historic, economic and social discrimination caused by colonialism go unrecognized and unaddressed (McGuire & Murdoch, 2021). Without a specific tool created for this purpose, or one that is at least empirically and culturally valid, there will be a negative impact to the sentences of Indigenous offenders, the custody classification of Indigenous offenders, the programs they are required or recommended to participate in, the programs they qualify for, their eligibility for parole and the conditions for their releases.

As mentioned previously, risk assessment tools are based on the Central Eight risk factors. However, six out of the Central Eight risk factors that consistently make up a part of most risk assessment tools have demonstrated a lower predictive accuracy for Indigenous offenders (Gutierrez et al., 2017). The only risk factors that demonstrated similar predictability were pro criminal attitudes and poor use of leisure time (Gutierrez et al., 2017). Since the Central Eight risk factors are the

foundation of most risk assessments, continuing to apply risk assessment tools that rely on these factors to Indigenous offenders despite there being empirical evidence of lower predictive accuracy is troublesome and discriminatory.

Next, risk assessment tools discriminate against Indigenous offenders because they systematically score Indigenous offenders higher than white offenders (Leitch, 2018). The overclassification of Indigenous offenders is exemplified through the use of the custody rating scale (CRS) by Corrections Services Canada (CSC). The CRS is the risk assessment tool used by the CSC to classify inmates as minimum, medium, or maximum security. The CRS has not only been found to be discriminatory, but it has even been argued by scholars that it violates s. 7 of The Charter because it arbitrarily infringes upon the liberty of Indigenous offenders by overclassifying them into higher security classes (Leitch, 2018). This overclassification infringes upon their liberty because it results in a lower likelihood to be paroled and the deprivation of the opportunity to serve sentences in Indigenous communities and healing lodges (Leitch, 2018). Indigenous offenders are underrepresented in minimum security classifications with only 16.1% of Indigenous offenders being categorized as low risk compared to 23.7% non-Indigenous offenders (Leitch, 2018). They are also overrepresented in medium and maximum security classifications and consist of 36% of dangerous offenders, a severe overrepresentation (Barmaki, 2023). This is significant because the classification of a dangerous offender makes parole a near impossibility and may result in an indeterminate sentence (Barmaki, 2023).

Aside from the lack of culturally valid tools, there are multiple contributing factors to the overclassification of Indigenous peoples. Firstly, there is a conservative culture within CSC that results in the staff ranking offenders’ levels of risk higher than suggested by the risk assessment tools to avoid threats to their careers and the institutions they work at (Leitch, 2018). This is magnified with Indigenous offenders, with CSC staff labeling Indigenous female and male offenders as substantially

more high-risk than non-Indigenous offenders (Leitch, 2018). Additionally, there is an inherent and recognized racial bias within the criminal justice system that may impact assessment outcomes (Leitch, 2018). The racial bias within the criminal justice system is a direct result of colonialism. There are also risk factors that are uniquely experienced by Indigenous peoples that are not reflected in risk assessment tools such as intergenerational trauma, residential schools, and the destruction of families (Leitch, 2018). The ignorance of the special circumstances of Indigenous peoples in risk assessment tools, especially after being required by the highest court of the land to test cross-cultural validity, is a blatant continuation of colonial superiority. The cultural invalidity of risk assessment tools, the multiple problems with CSC’s culture and staff practices, the impact of colonialism on the racial bias of the system and the exclusion of factors and considerations reflecting special circumstances has resulted in arbitrarily and systematically over classifying Indigenous peoples on risk assessments.

The Impact of Risk Assessments on Overrepresentation

The discriminatory nature of risk assessments has a profound impact on the issue of overrepresentation within the criminal justice system. Risk assessment tools create significant barriers to rehabilitation and reintegration, which increases likelihood of recidivism. For example, higher custody classification impacts the eligibility and availability of certain programs for offenders. For Indigenous offenders, risk assessment and custody classification have a significant impact on culturally appropriate programming, eligibility for healing lodges, and the ability to serve sentences in Indigenous communities. In 1992, Parliament introduced section 81 of the Corrections and Conditional Release Act which recommended serving sentences healing lodges and Indigenous communities as a way to decrease Indigenous overrepresentation in federal prisons (Leith, 2018). Research has proven that serving sentences in Indigenous communities is an effective way of promoting successful

reintegration (Leitch, 2018). However, s. 81 requires that the Indigenous offenders must be classified as minimum security risk to be eligible for this programming. This is a significant barrier because only 16.1% of Indigenous offenders are classified as minimum security (Leith, 2018). Therefore, over-classifying Indigenous offenders has a negative impact on their reintegration by reducing their ability to participate in healing lodges and serve part of their sentences in Indigenous communities. The separation Indigenous peoples feel by being placed in custody alone can cause isolation from their culture and spirituality. By denying Indigenous peoples these culturally appropriate alternative sentences that have been proven to promote successful reintegration, corrections are contributing to their overrepresentation and forcing more Indigenous offenders to conform to a carceral system that was imposed upon them as a part of colonialism.

Secondly, risk assessments also have an impact on eligibility for parole and the conditions for release. Statutory release is granted ⅔ into an offender’s sentence, but offenders may apply to be released earlier (Barmaki, 2023). The risk classification of an offender has a significant impact in the likelihood of them being granted parole or even a day pass (Barmaki, 2023). Day parole is particularly helpful in rehabilitating offenders as it focuses on participation in community-based programs to help reintegrate after full release (Barmaki, 2023). Research has shown that Indigenous offenders are less likely to be granted parole and are instead released on their statutory release date, contrary to the Corrections and Conditional Release Act, which states that statutory release should only be a “last resort” when it is not appropriate to release the offender earlier (Barmaki, 2023). The empirical research and data demonstrating the reduced likelihood of Indigenous offenders being granted parole in comparison to their white counterparts reinforces the institutional racial bias that results in discrimination. Since Indigenous offenders are more likely to be classified as higher risk and dangerous offenders, they are also more likely to be held in penitentiaries with strict

rules. The strict penitentiaries are more likely to have little to no tolerance for small risks and “poor” behaviour (Barmaki, 2023). Violations of the rules in prison further results in a lower likelihood of being granted parole (Barmaki, 2023). The result of the over-classification of Indigenous offenders is a vicious cycle. It begins with high risk classification, which translates to higher security classification, where there is a lack of programs (especially cultural programs). Being Indigenous and having a higher risk assessment lowers chances of parole, which means they serve longer sentences with less reintegration efforts. This cycle increases the risk of recidivism which maintains overrepresentation of Indigenous peoples within the criminal justice system.

Having explained what risk assessment tools are and having sufficiently demonstrated how they discriminate against Indigenous offenders and contribute to their overrepresentation, this paper will now discuss the use of solitary confinement with Indigenous offenders in Canada.

Use of Solitary Confinement/Administrative Segregation/Structured Intervention Units

Solitary Confinement in a Canadian Context

Solitary confinement, or administrative segregation as it was referred to in Canada, is the practice of confining prisoners to their cells alone for 22+ hours of the day (United Nations, 2015). The United Nations established in The Standard Minimum Rules for the Treatment of Prisoners that the use of solitary confinement has severe negative consequences on inmates and that its prolonged use (15 days or longer) amounts to torture (United Nations, 2015). For quite some time, medical experts have recognized that solitary confinement has immediate, harmful, and permanent negative impacts on offenders (Pate, 2018). The use of administrative segregation was a common practice within Canadian corrections up until 2019, when it was abolished.

Canada decided to abolish solitary confinement through Bill C-83 in 2019 to ensure that they were not in violation of the Mandela Rules.

In replacement of solitary confinement, Canada now has Structured Intervention Units (SIUs). The differences are that prisoners would theoretically only be confined to 20 hours in their cell instead of 22 or more, and that 2 of the 4 hours outside of the cell had to have meaningful contact with others or access to programs (Wells, 2020). However, in practice there continues to be little to no difference as these new rules are not followed. On at least half the days inmates were held in SIU’s, only 21% met the legal requirement of spending four hours out of their cells and only 46% of inmates in SIUs received two hours of meaningful human contact (Wells, 2020). Therefore, solitary confinement has clearly continued on in Canada, simply under a different name.

Use of Solitary Confinement with Indigenous Offenders

The second area within custody where Indigenous offenders face discrimination resulting in their continued overrepresentation is the overuse of solitary confinement for Indigenous offenders. An offender can be segregated for many reasons, it could be for something as minor as

talking back or rolling their eyes at corrections staff or something as serious as fighting, being a threat to others’ safety or their own. There is no specific set of guidelines or universal standards of when to apply solitary confinement, giving corrections staff a significant amount of discretion in their application of the punishment.

Indigenous offenders are disproportionately placed into administrative segregation, or SIUs. Indigenous offenders made up 39% of all recorded stays in SIU’s from December of 2019 to August of 2020 (Doob & Sprott, 2020). This is significantly higher than their 30% prison population. Furthermore, as a group, Indigenous offenders have consistently had the longest average length of stay in segregation (Office of the Correctional Officer, 2015). There are many significant standout cases of extreme misuse of solitary confinement with Indigenous peoples. For example, Adam Capay, an Indigenous man, was held in solitary confinement and dry-celled (24 hours of light) in an Ontario facility for over 1500 days (John Howard Society, 2017). Ashley Smith was a young Indigenous women who committed suicide at the age of 19 in solitary confinement, with 4 guards watching (Canadian Civil Liberties Association, 2023). She had spent 11 and a half months cumulative time in solitary confinement before her suicide (Canadian Civil Liberties Association, 2023). The disproportionate amount of Indigenous offenders in SIU’s, the length of their stays, and the cases of extreme misuse demonstrate how Indigenous peoples are discriminated against while in custody. Since Indigenous offenders are disproportionately subjected to segregation, they are more likely to suffer from the punishments' negative effects.

Consequences of Administrative Segregation for Indigenous Offenders

As mentioned earlier, segregation has immediate, harmful, and permanent negative effects on offenders. Solitary confinement can lead to the onset of depression, anxiety, paranoia, psychosis and insomnia (John Howard Society, 2017). It can also worsen previous existing mental health issues, which 38% of offenders in solitary confinement have (John Howard

Society, 2017). If Indigenous offenders are being disproportionately placed into segregation, they are also being disproportionately exposed to the harmful effects it can have on an individual. The onset of these serious mental health problems and the worsening of existing mental health conditions causes barriers to rehabilitation and reintegration. This is augmented by the fact that Indigenous peoples are already at risk for mental health problems as a result of their intergenerational traumas and socioeconomic disadvantage.

Next, offenders are unable to access any programs if they are being held in SIUs. This has a unique negative impact on Indigenous offenders as it is another way to deny them culturally appropriate programming and isolate them from their spirituality and culture. This isolation and the inability to participate in programs, which are proven to reduce recidivism and boost rehabilitation, creates a significant barrier to the successful reintegration of Indigenous offenders in society. Additionally, stays in SIUs may be used as a reason to deny an offender early probation, which also has a negative impact on the reintegration of Indigenous offenders (Barmaki, 2023). Therefore, it has been proven that administrative segregation or SIUs are disproportionately used with Indigenous offenders for longer periods of time, which has terrible negative consequences on their mental health, bars access to programming, and reduces their ability to get parole. These consequences result in barriers to reintegration and rehabilitation, contributing to recidivism rates that maintain the overrepresentation of Indigenous peoples within the criminal justice system.

Conclusion:

In conclusion, the issue of overrepresentation of Indigenous peoples in Canada is a layered problem with many contributories that are intertwined with colonialism. The current approaches being taken to attempt to ameliorate the overrepresentation of Indigenous peoples, such as Gladue reports and s. 718.2(e) of the Criminal Code, are failing because

they are limited in scope to before an offender is sentenced. These approaches do absolutely nothing to aid in the discrimination Indigenous offenders face once they are in custody. Indigenous offenders are discriminated against within custody because they are subjected to risk assessment tools that are culturally invalid as there are no tools that have been developed for Indigenous offenders and the existing tools do not have any empirically tested cross-cultural validity. Due to this cultural invalidity, the lack of consideration of Indigenous peoples unique circumstances with assessment tools, the existing racial bias in the criminal justice system, and the conservative nature of the CSC, risk assessment tools systematically over-classify the risk of Indigenous peoples. The over-classification discriminates against Indigenous peoples because it results in a lack of access to programming, difficulties for early parole and the ability to serve sentences in healing lodges and Indigenous communities which creates barriers to their reintegration and increases risks of recidivism. Indigenous peoples are also discriminated against within the criminal justice system as they are subject to the increased use and increased length of SIUs or segregation, which can create and worsen mental health problems, eliminate access to programming, and reduce likelihood of parole. The disproportionate negative impact on mental health, the elimination of access to programming and reducing chances of parole serves to create more barriers to rehabilitation and reintegration that may increase the risk of recidivism. Recidivism maintains the overrepresentation of Indigenous peoples within the criminal justice system. In order to make a significant and meaningful impact on ameliorating the overrepresentation of Indigenous peoples within the criminal justice system, there should be an expansion of efforts to address the discrimination Indigenous peoples face in custody that cause barriers to rehabilitation and reintegration which may result in increased recidivism.

References

Barmaki, R (2023) Risky Justice of the Law: The Impact of Risk-Assessment Tools on Aboriginal Offenders’ Overrepresentation in Canada’s Federal Prisons. The Prison Journal, 103(1), 68–90. https://doi-org proxy library carleton ca/10 1177/00328855221139866

Canadian Civil Liberties Association. (2023) Fighting Solitary Confinement. Retrieved from https://ccla org/major-cases-and-reports/fighting-solitaryconfinement/#:~:text=Ashley%20Smith%20was%2019%20when,cumulative%20time%20in%20solita ry%20confinement.

Criminal Code, RSC 1985, c C - 46 Retrieved from CanLii

Government of Canada, JustFacts (2019) Indigenous overrepresentation in the criminal justice system. Retrieved from https://www.justice.gc.ca/eng/rp-pr/jr/jf-pf/2019/may01.html

Gutierrez, L , Helmus, L M , & Hanson, R K (2017) What We Know and Don’t Know About Risk Assessment with Offenders of Indigenous Heritage. Public Safety Canada.

Hart, S D (2016) Culture and violence risk assessment: The case of Ewert v Canada Journal of Threat Assessment and Management, 3(2), 76-96. https://doi.org/10.1037/tam0000068

John Howard Society (2017) Solitary Confinement Fact Sheet Retrieved from https://johnhoward on ca/wp-content/uploads/2017/02/Solitary-Confinement-FactShe et-Final-1.pdf

Leitch, D. (2018). The constitutionality of classification: indigenous overrepresentation and security policy in canadian federal penitentiaries. Dalhousie Law Journal, 41(2), 411-442.

Martel, J., Brassard, R., & Jaccoud, M. (2011). When two worlds collide: aboriginal risk management in canadian corrections. British Journal of Criminology , 51(2), 235-255.

McGuire, M. M., & Murdoch, D. J. (2022). (In)-justice: An exploration of the dehumanization, victimization, criminalization, and over-incarceration of Indigenous women in Canada Punishment & Society, 24(4), 529–550. https://doi-org.proxy.library.carleton.ca/10.1177/14624745211001685 Office of the Correctional Investigator. (2015). Administrative Segregation in Federal Corrections: 10 Year Trends Retrieved from https://www oci-bec gc ca/cnt/rpt/oth-aut/oth-aut20150528-eng aspx

Pate, K. (2018, November 16). Solitary by another name is just as cruel. Retrieved from https://sencanada ca/en/sencaplus/opinion/solitary-by-another-name-is-just-as-cruel-senator-pate/ R. v. Gladue, [1999] 1 S.C.R. 688

United Nations (2015) The United Nations Standard Minimum Rules for the Treatment of Prisoners. Retrieved from https://www.unodc.org/documents/justice-and-prisonreform/Nelson Mandela Rules-E-ebook pdf

Wells, P. (2020). The numbers are in on solitary confinement. They're not good. Maclean’s. Retrieved from https://www macleans ca/politics/ottawa/the-numbers-are-in-on-solitaryconfinement-theyre-not-good/

Sexual Sadism in the Eyes of Society

by: Zev Fenning

Keywords: Sadism, BDSM, Societal Norms, Consent, Legal System, Labelling Theory

The sexual sadist is a figure that society has been taught to fear, with films and television shows portraying them in a terrifying and negative light. However, the term sexual sadism has been difficult to define, with many different scholars and organizations being unable to conclude the same definition. Sexual sadism in itself is not something to fear or be shown in a negative light, as it can be a healthy component of many sex lives. With many aspects of social life showing sexual sadism in a negative connotation, it comes as no surprise that most members of society see it negatively. Despite sexual sadism being a major component of why many scholars claim sexually sadistic killers are the way they are, delinquency is what pushes them over the edge and causes them to commit crimes. While many court cases and other examples of killers, such as that of Jack the Ripper, would show that sexual sadism in itself is the cause of the crimes, it is proven that sexual sadism is not the cause because of BDSM being active in the community. The legal system itself causes issues among sadists by not allowing safety measures to be in place to protect those in consensual BDSM relationships.

This paper will start off with a literature review then move to the first case study of Jack the Ripper. Next the discussion will be brought to BDSM and sadism with regards to legal action followed by another case study; R. v. Brown. It will conclude with a small discussion of the use of language and consent.

Literature Review

Among scholars, there is a disagreement about the definition of sexual sadism. The American Psychiatric Association (APA) defines sexual sadism

as the person focusing their fantasies, urges, and actions on causing humiliation, pain and suffering on another person (Mokros et al., 2011). Meanwhile, the World Health Organization (WHO) defines sadomasochism as consensual role-play between dominant and submissive, and only claims that severe sexual sadism uses unwilling participants who were coerced into it (Mokros et al., 2011). With these two major psychological organizations having arguing views about the definition, it is easy to understand why scholars and society alike have negative connotations of sexual sadism. While WHO’s definition allows the space for consent, the addition of the severe sexual sadism definition limits the unbiased view of society.

With these two biased definitions from the major psychological organizations, scholars are easily influenced to use that bias in their research. Karakasi et al. use bias within their study when they use the word ‘victim’ to describe the submissive in a sadomasochist encounter (2017). The authors were most likely trying to describe an encounter with a sexual homicide offender, who has already become delinquent, however, the use of sexual sadist/sadism in a paper about sexual homicide offenders, results in the prejudice that is seen in society.

While some scholars can recognize that the lack of a conclusive definition limits their research, such as Stefanska et al. (2019), many scholars do not name this as a limitation. Stefanska et al. (2019) start their work by naming the lack of a conclusive definition as a limitation, which allows the reader to recognize that work on sexual homicide offenders is not unbiased. Chopin and Beauregard also reference the lack of a clear definition, however, their work still shows levels of bias by presenting sadism as having to be non-consensual (2020). Despite stating the limitations of the definition of sadism, many works surrounding the topic of sexual homicide offenders are inherently biased because society has labeled sadism as delinquent.

Jack the Ripper Case Study

Throughout history, society has labelled sexual homicide offenders as

sexual sadists such as Jack the Ripper. The case of Jack the Ripper is a prime example of how society has labeled sexual sadism in a negative light. In Casebook: Jack the Ripper they use the term sexual serial killer (Schachner, 2024) which helps in trying to minimize the bias that is placed on the term sadist. While Jack the Ripper can be argued over if he was indeed a sexual serial killer, the events which took place at his murders conclude that he was a sexual serial killer. He severely mutilated his victims, leaving at least one almost unrecognizable (Schachner, 2024). Indeed, Jack the Ripper’s case never showed signs of sexual intercourse, and there was no semen found at the crime scenes (Schachner, 2024). However, as per Karakasi et al., sexual power can be “ symbolically expressed through genital mutilation of the victim” (2017). Therefore, Jack the Ripper was indeed a sexual serial killer, he just did not express sexual power in the way that society first imagines.

Warren et al. also reference the Jack the Ripper case and highlight the “serial murder” of the case as “sadistic” (1996). It is this bias in currentday works that results in the negative connotation of sadism. The Jack the Ripper case is one example of a case that was originally deemed a sexual serial killer and had society change the wording to fit their moral viewpoint of sadism, labeling Jack the Ripper as a sexually sadistic serial killer. Placing the word ‘sadistic’ into the label allowed for society to view sadism as a negative, rather than a part of sexual pleasure.

If society argues over whether or not Jack the Ripper is a sexual serial killer, what are the criteria that they follow to declare a sexual serial killer? According to Karakasi et al., sexual homicide is dependent on the killing of the victim and the sexual behaviour of the offender (2017). With these criteria, sadism can subjectively be a part of the offender’s behaviour, yet society has used this possibility to subject all sexual serial killers as sadistic.

The Sexual Homicide Crime Scene Rating Scale for Sexual Sadism (SADSEX-SH) is a tool that is used at the crime scene of a sexual crime to identify sexual sadistic characteristics among the offender (Chopin and Beauregard, 2020). This scale has eight identifiers that they look for to identify the offender as sadistic. Of these eight, Jack the Ripper met four of these identifiers.

“Gratuitous violence, excessive injury, biting, cutting, or other acts of physical cruelty inflicted on the victim” (Chopin and Beauregard, 2020) is the second identifier. Jack the Ripper had a definite use of excessive injury as shown by cutting off the tip of Eddowes’ nose (Schachner, 2024). This act does not need to be done in any form to kill the victim, it is purely for the killer to enjoy the actions and diminish Eddowes as a person. The third identifier, “Sexual mutilation of the victim” (Chopin and Beauregard, 2020). is obvious in the Jack the Ripper case as he cut Eddowes’ uterus out of her body (Schachner, 2024). There is no explanation for cutting out Eddowes’ uterus post-mortem other than the offender wanted to sexually mutilate her. Finally, “Souvenirs or trophies taken from the victim” (Chopin and Beauregard, 2020) is the fourth identifier that Jack the Ripper met, with him taking the left kidney from Eddowes (Schachner, 2024). Taking a kidney from Eddowes has no significant value for the killing other than a reminder for the killer of the crime he committed.

The SADSEX-SH, while able to identify key factors that sexual serial killers display, the naming of the scale is problematic. By naming the scale with the term ‘sexual sadism,’ society is susceptible to bias about sadism. Sadism alone is not a danger to society, however, because of the labeling of ‘sexually sadistic serial killers’, and the ‘Sexual Homicide Crime Scene Rating Scale for Sexual Sadism’ society places a negative prejudice on sadism.

Warren et al., (1996) found in their work that only 75% of the sexual serial killers observed met the diagnostics of sexual sadism. Using the definition of sexual sadism provided by MacCullough, Snowden, Wood, and Mills, the only requirement to meet for sexual sadism is to repeat and practice the behaviour and fantasy which the person is imagining. The fantasy is “characterized by a wish to control another person by domination, denigration or inflicting pain for the purpose of producing mental pleasure and sexual arousal (whether or not accompanied by orgasm) in the sadist” (Warren et al., 1996). This definition of sexual sadism in itself is unbiased, however, because it is used in an article about ‘sexually sadistic serial killers,’ society views the other person as a victim.

BDSM and Sadism with the Law

Consent plays a major role in separating sadism as delinquent or accepted, with many people in society still having prejudices about sadism with consent. Sadism has been given such a large negative connotation that society can no longer differentiate the consensual sadism from the ‘sadism’ of killers. Consent is the main component that separates sadists in BDSM from ‘sadistic’ killers. The reason that consent is often no longer associated with sadism is because of society’s prejudice and biases towards the BDSM community and safe sadism. Society relies heavily upon the legal system to protect and tell them what is safe and against the law. The issue with placing so much reliance and admiration on the legal system is that anything that is deemed against the law or dangerous is discriminated against. Sadomasochism and BDSM are not against the law, however, because some of the activities involved in BDSM are dangerous and inflict pain, the legal system sees it as a danger to society. Sadism is inherently deemed negative, dangerous, and repulsive by society, and yet consent and the legal system play a much larger role than society knows.

Societal standards may have changed, but many concepts have remained taboo, with sadomasochism, sadism, and the community of BDSM in general, being seen that way. The legal system has reinforced the biases that go along with these concepts, allowing society to judge and belittle members of the BDSM community. Some scholars, such as Theodore Bennett, have come to the conclusion that how the law is practiced and how the law is written are very different, especially when related to BDSM (2023). Interpretation of law is often left to the judgement of the court judge, with many factors playing a role in what the judge will decide. Judges come from different social, economic, and cultural backgrounds etc., which can alter their interpretations of the law during a case. A judge in a case involving BDSM can be biased based on their cultural background, their socio-economic background, or even their religious background. It is this issue that results in sadism being seen as biased because the people who run our society and our legal system, which society trusts, are prejudiced.

Bennett further discusses the concept of how many members of the BDSM community who run these spaces and events face the fear of ridicule and prosecution (2023). With a society and a legal system that is designed to be prejudiced against outsiders, it is no wonder that the BDSM community is subject to ridicule from them. BDSM, and sadism in particular, is seen in such a negative connotation throughout society, cultures, and religions, that if it was not present in the legal system there would be a concern. Consent is such a key component of BDSM relationships and sadism that it is always one of the first few things that are discussed. Yet the legal system and society have deemed that consent is not a solid defence for anyone who participates in BDSM activities.

The issue that has arisen is that some accused are using the defence of consensual BDSM (Bennett, 2023), which results in the juries, judges, and the legal system as a whole, dismissing the defence when it is the reality. While it can be understood why the legal system is wary of the concept of consent as a defence, the lack of receptiveness to consent is concerning. If consent is being used as a defence, then allow the submissive to testify on their behalf, to ensure that the accused is telling the truth. If consent was not given, then the victim should be the best one to inform the court. The case of R. v. Brown in England during the 1990s is an example of how the legal system is biased against those in the BDSM community.

R.v. Brown Case Study

Starting in 1987, the investigation into the case of R. v. Brown caused a homemade video to surface in the eyes of the Obscene Publications Squad in England. The homemade video portrayed a large number of men participating in homosexual S/M activities, activities also known as sadistic. The Obscene Publications Squad after watching the video, launched an investigation into the murder of one of the men in the video. That investigation concluded that no one was murdered, however, the submissives had not consented and were being subjected to this torture (Khan, 2014).

None of the men, submissives or dominants, ever went to the police to file a claim that there was no consent. The way the legal system got around this

was to claim that it was in the interest of the public to protect these men, the submissives, who were “too naive to recognize their own exploitation” (Khan, 2014). The court found that all sixteen men on trial were guilty of various assault charges. After going through appeals, the European Court of Human Rights, in 1993, found that the British court had been correct in its decision, claiming that it was the job of the government to “ regulate private activity when issues of health, safety, and morality are involved” (Khan, 2014).

The case of R. v. Brown highlights the bias that is within the legal system when it comes to BDSM and nontypical sex practices. None of the men in the video had an issue with what they were doing and yet the court and society deemed that it was a concern to public safety by allowing these activities to continue. There was no significant harm that had not been consented to within any of the relationships between the men, and yet the legal system decided that their practices were unsafe, unhealthy, and immoral.

Morality is deemed to line up with our legal system to ensure that society as a

hole is on board and agrees with the aw. However, morality is subjective o the individual. While there are ases where most of society would gree with the concept, for example, murder, others are subject to the ndividual; like the practice of BDSM nd sadism. The courts struggle with morals that are subject to the ndividual because the judges’ own morals may come into play. In the R. . Brown case, Lord Templeman, one f the judges at the highest appeal, aims “Pleasure derived from the nfliction of pain is an evil thing. ruelty is uncivilized” (Khan, 2014). his bias that the judge shows is not ncommon for society because the oncept of BDSM is so subjective.

Sadism can be a difficult concept o navigate for the legal system as it eals with the concept of giving and eceiving pain. Without consent eing given, sadism would be onsidered delinquent and against the aw, however, because consent is iven and discussed there is a limit hat is respected. Giving and eceiving pain is just a part of adism, with the pleasure that is erived from the pain being the end oal. However, society does not

understand that kink is subjective and personal, not everyone is into sadism and that’s not an issue. The issue is when society deems all kinks to be negative because there is a predisposed notion that kinks are dangerous and bad for people.

Lord Templeman, the judge of R. v. Brown, also decried that the submissive’s consent is “dubious and worthless,” because of his morality and background (Khan, 2014). Due to the case of R. v. Brown being about homosexual sexual relations, the judges responded differently to the case. Samesex marriage was not legalized in England until 2014, therefore at the time that R. v. Brown took place many people were against homosexual relationships. This thought process by society and the judges certainly played a role in convicting these men. While sadism is seen as a negative already, the fact that the case also involved sixteen homosexual men most likely persuaded the judges in deciding the men were guilty.

The issue with cases like R. v. Brown is that they set a precedent in future cases involving sadism and BDSM relationships. Because places like Canada, England, the United States, and Australia are common law, they are “bound to follow previous decisions made by higher courts within their court hierarchy” (Bennett, 2023). Decisions set by previous courts can be problematic in allowing subjective morals to be changed and adapted over the years. BDSM might not have been as common thirty years ago as it is today, however, it is a subjective moral that will forever be enclosed within this legal ruling. Until another case comes along and is brought before the Supreme Court to decide if the precedent will be changed, BDSM relationships are subject to the ruling of court decisions from past generations.

Conclusion

BDSM is an active community that shows that sadism is not a danger to society. Through the use of safe words, consent, and open communications people in the BDSM community can play with pain and pleasure in ways that others in society will never understand. Sadism is not the boogeyman that needs to be hidden away for the good of society, it is simply an an alternative sex life, which many people are into.

With language and systems being reigning forces that dictate the way society perceives concepts, it is no surprise that BDSM and sadism are subjected to being labeled as deviant and delinquent. From the labeling of forensic tools to the precedent-setting cases, sadism and BDSM have been seen as negative throughout historical and contemporary society. Cases such as Jack the Ripper show how sadism has developed into a deviant word that is used to label criminals that society deems treacherous. Sadism is not a delinquent word within itself, it becomes delinquent when society places negative connotations on the concept that it represents. Inflicting pain on others in a consensual way, which is what sadism is, is not delinquent. While it may be deviant in the way that it breaks from normal societal morals, sadism is not the danger to society that the case of R. v. Brown makes it out to be.

Consent is a key factor in sadism that differentiates it from the delinquent use of the word that has been given by society. Despite the understanding in BDSM communities that consent needs to be discussed and a safe word in place to keep all parties safe and happy, society has made consent out to be an unreliable concept that in reality will not protect you for the outcome society has for ‘others’.

The sexually sadistic serial killer is a concept that is used to scare away society from understanding those who are sadists in a positive environment, such as that of BDSM. While sadism is just the exchange of pain and pleasure, society does not want to understand that because of the negative connotation that has been conjured by scholars and systems alike. The term ‘sadism’ needs to be seen in a positive light that it should be seen in, so long as society does not continue to be biased and prejudiced towards the term and the people.

In the end, sadism has been given negative viewpoints throughout history and current day to divide society by their sexual habits. There is nothing wrong with deriving pleasure from pain, and there is nothing wrong with not liking pain in one's sex life. Sadism is only delinquent because society continues to push the agenda that it is. As long as society deems it to be delinquent it will continue to be, but change is coming in future years as the BDSM community takes back the word ‘sadism.’

References

Bennett, T (2023) A Record of Violence: The Continuing Criminalization of BDSM Activities In B. Simula, R. Bauer, & L. Wignall (Eds.), The Power of BDSM: Play, Communities, and Consent in the 21st Century (pp 188-206) Oxford University Press https://doiorg.proxy.library.carleton.ca/10.1093/oso/9780197658598.003.0011

Chopin, J , & Beauregard, E (2020) Sexual Sadism: Its Role in the Crime-Commission Process of Sexual Homicide of Children. Journal of Interpersonal Violence, 37(1-2), 350-374. https://doiorg.proxy.library.carleton.ca/10.1177/0886260520916844

Karakasi, M.-V., Vasilikos, E., Voultsos, P., Vlachaki, A., & Pavlidis, P. (2017). Sexual homicide: Brief review of the literature and case report involving rape, genital mutilation and human arson Journal of Forensic and Legal Medicine, 46, 1-10. https://doiorg.proxy.library.carleton.ca/10.1016/j.jflm.2016.12.005

Khan, U. (2014). The Legal Fondling ofS/M Practice. In Vicarious kinks: S/M in the socio-legal imaginary (pp. 225-303). University of Toronto Press. https://books-scholarsportalinfo proxy library carleton ca/uri/ebooks/ebooks3/utpress/2014-06-28/1/9781442668096

Mokros, A , Osterheider, M , Hucker, S J , & Nitschke, J (2011) Psychopathy and sexual sadism Law and Human Behavior, 35(3), 188-199 https://doi org/10 1007/s10979-010-9221-9

Schachner, T (2024) Catherine Eddowes Casebook: Jack the Ripper Retrieved February 24, 2024, from https://www.casebook.org/victims/eddowes.html

Schachner, T (2024) Introduction to the Case Casebook: Jack the Ripper Retrieved February 24, 2024, from https://www.casebook.org/intro.html

Stefanska, E B , Nitschke, J , Carter, A J , & Mokros, A (2019) Sadism among sexual homicide offenders: Validation of the sexual sadism scale. Psychological Assessment, 31(1), 132-137. https://doi org/10 1037/pas0000653

Warren, J., Hazelwood, R. R., & Dietz, P. (1996). The Sexually Sadistic Serial Killer. In T. Fleming & International Research Group for the Study of Mutiple Murder (Comps.), Serial and mass murder: Theory, research and policy (pp. 77-91). Canadian Scholars' Press. https://books-scholarsportalinfo.proxy.library.carleton.ca/uri/ebooks/ebooks0/gibson crkn/2009-12-01/5/412475

Establishing Credibility

in a Context

of Misinformation:

Rape Jury Trials and Rejecting Judicial Address Intervention in Favour of Expertise

by: Wesley Welch

Keywords: Credibility, Skepticism, Victim-blaming, Social Myths, Violence

The proper prosecution of sexual assault is a contentious jurisprudential issue. Rape trials, in the absence of concrete physical evidence or corroborating witnesses, often take the form of a ‘credibility contest’ between the accused and the complainant; while this presentation of the average rape trial is an apt one, it remains an overly-simplistic assessment of the complex problem of ‘credibility’ itself. Pernicious social myths about ‘real’ rape present in the minds of judges and juries alike create a hostile environment for a female complainant, wherein her credibility seems to be automatically called into question for simply raising the charge of rape. Over the course of the trial, the complainant is held to impossible and contradictory standards of determining veracity, where her credibility as a witness to her own victimization is essentially impugned if she ‘did’ and impugned if she ‘didn’t’ in regard to many aspects of her behaviour concerning the alleged offence. Rape myths as a form of fallacious misinformation fundamentally skew the perspective of the trier of fact even when they are not explicitly relied upon by defence counsel, as they arise out of the dominant social milieu out of which legal personnel and juries enter the courtroom. This paper will first profess the stark need for intervention to limit the influence rape myths hold over the credibility contest; then examine the merits and demerits of two different forms of this proposed intervention, namely, judicial addresses and the provision of informed expert testimony. The uncontested presence of bias in the courtroom engenders an environment where the complainant, not the accused, is on trial. If left unchallenged, the effective administration of justice will remain in disrepute.

I. The Need for Intervention

This section will provide a brief overview of the use of rape myths, examine how they are employed to create overly rigid dichotomies of behaviour, and extrapolate those dichotomies into problematic criteria which a complainant must fulfill in order to be viewed as sufficiently credible-- or deserving of belief. At their most basic level, rape myths consist of widely held beliefs about the occurrence of sexual assault which, given their collective acceptance despite factual inaccuracy, have ascended to the status of a social myth. This distinction of holding a mythological status signals an important element of the rape myth’s construction and use. In their article “Reacting to Rape”, Louise Ellison and Vanessa Munro posit that the central social function of a myth is to provide a paradigmatic example of behaviour to either conform to or avoid, and rape myths offer social scripts of the ‘acceptable’ assault, assaulter, and victim (Ellison & Munro, 2009, p. 204). Adherence to these norms (however unlikely) is accepted as a cultural given, while divergence is subject to harsh inquiry and critique. This social mythologizing function in the case of rape myths advances a status quo premised on the sexual subordination of women, as these myths are employed in ways that “serve to deny, downplay, or justify sexual violence” (Skinner & Smith, 2017, p.443). This has contributed to a culture of victim-blaming, wherein the alleged victim of an assault is construed as having done something to invite an attack or not having done enough to stop one. There is ample documentation of the presence of rape myths in the courtroom, both in trial transcripts themselves alongside critiques in secondary jurisprudence. The presence of myths in larger society which “blame the victim/survivor… cast doubt on allegations… [and] excuse the [alleged perpetrator]” will necessarily be reflected in the beliefs of widely representative jury pools and legal professionals (Skinner & Smith, 2017, p. 443). When studying the effect of rape myths on complainant credibility through a series of mock juror scenarios, Ellison found that “jurors may be influenced in

their deliberations by a number of extra-legal stereotypes about ‘appropriate’ socio-sexual behaviour”, including the complainant’s physical attractiveness, her attire, her potential level of intoxication, her behaviour surrounding the incident, and any history with the accused (Ellison & Munro, 2009, p. 206). These justificatory attempts, which displace blame on the part of the accused and problematize the actions of the complainant, demonstrate a context in which alleged victims are seen to be unreliable narrators of their own victimization.

This conscious or unconscious reliance on unfounded and empirically unrealistic assumptions about ‘how rape really happens,’ or how it may be justified in the context of a trial poses a unique issue. Rape myths are simply that: myths. Employing them as a standard for determining a complainant’s credibility involves an uncontested reliance on oversimplified and erroneous stereotypes which leave no room for the subjective interpretation of complex patterns of behaviour one may adopt after a traumatic event. Although modern psychological understandings advance the fact that complex PTSD can take unpredictable, varying, and even contradictory forms as different people respond to similar events (Cramer & Gemberling, 2014, p. 123), the use of rape myths at trial shrinks the focus of this analysis to a stark dichotomy. This myopic focus manifests in one of the primary ways in which complainant credibility is assessed: their perceived adherence to ‘normal’ or expected behaviour post-assault. In the context of UK court proceedings, Ellison posits that “among the most commonly-cited problems facing prosecutors in rape cases is the tendency of defence lawyers to portray the normal behaviour of women as ‘unusual’ or inconsistent with a genuine complaint” (Ellison & Munro, 2009, p. 203). However, the simplistic dichotomy of reasonable, usual behaviour versus irrational and unusual (and therefore non-credible) behaviour is not premised in psychological or sociological fact, and such tests of ‘usualness’ are not appropriate for the evaluation of ambiguous and complex post-assault trauma.

A common rape myth that provides a criterion for this standard is that the ‘usual’ rape victim will always struggle as much as possible to get free from her rapist, despite evidence suggesting that most victims do not struggle so as to avoid the infliction of further harm; two legal scholars Tina Skinner and Olivia Smith, fault herein lies with the court’s mythical construction of normalcy as “the actions being portrayed as irrational, for example, not struggling, could also be framed as a logical response to trauma, fear, and the drive for survival” (Skinner & Smith, 2017, p. 452). In this instance as well, rape myths serve the function of casting the complainant’s response to her trauma as somehow untrustworthy and inviting of suspicion. Furthermore, the pervasive hostility towards the complainant, which rape myths give rise to, also results in the enforcement of illogical and contradictory standards of behaviour as another test of credibility. A second common rape myth entails that complainants who are visibly

emotional or distressed during and after their assault, and at trial, are implicitly assumed to be more credible, “more cautious, and… less responsible for their rape than their calm counterparts” (Ellison & Munro, 2009, p. 211). Therefore, emotionality seems to be a factor which should bode well for a complainant’s credibility at trial, while stoicism should detract from their case. However, paradoxically, during Ellison’s study of juror assessments, one remarked that given modern hospital procedures for collecting evidence women should “act quickly to preserve forensic evidence”; another indicated that delays in reporting an assault, which often stem from the emotional upset of trauma, could also be construed as suspicious (Ellison & Munro, 2009, p. 209). To these jurors, the complainant must be calm enough to rationally assess the circumstances of her rape with enough clarity to make the judgement that collecting evidence at a hospital would help her case, as well as not emotional enough to delay reporting out of fear lest she

be cast as a liar. As such the aforementioned calm = non-credible / emotional = credible standard seems to be able to be cast aside at will on the basis of unfounded assumptions about likely post-rape behaviour. In this way, the mutable nature of myth means that the complainant is always lying when it suits the jury to disbelieve her allegations, constituting a culture of suspicion within the courtroom that is based on misogynistic bias.

Finally, even in instances where the criteria for believability is more straightforward and uncontradictory, there exists an impossible standard of corroboration so that in effect, the goalpost of achieving credibility is always moving. One further rape myth suggests that physical markers of a struggle are a good indicator that the complainant is telling the truth, once again contrary to the evidence discussed above. Nevertheless, in the same mock juror assessment, “in those trial scenarios in which there was some evidence of bruising and scratching upon the complainant… it was clear that a large number of jurors continued to expect higher levels of injury to be compelled”, and in order to be fully persuaded, the complainant would need to “exhibit injuries that were not only severe, but unambiguously attributable to the deliberate infliction of unwanted violence” (Ellison & Munro, 2009, p. 208). Even when the complainant did in fact conform to the statistically unfounded stereotypical specter of a rape victim, jurors were incredulous and distrustful. What’s more, is that they were more willing to substitute fantastical-- and wholly conjectural-- conclusions of other ways in which she may have received the bruises rather than simply take her allegation at face value: “another proposed that she may have gone on a roller-coaster ride the day after the intercourse… [while] a number of jurors also intimated that… the complainant’s bruises were deliberately self-inflicted in order to support her fabricated allegations” (Ellison & Munro, 2009, p. 208). These alternate explanations offered by jurors to explain the complainant’s bruises range from absurd to overtly suspicious.

A common estimation of the impact of rape myths on complainant credibility is that any deviation from an assumed speculative norm is taken by the trier of fact to mean that the complainant is lying (Skinner & Smith, 2017, p. 445). Upon consideration of the ways in which mock jurors react to cases of sexual assault (Ellison & Munro) and reports of bias from a 10-month observation period of real rape trials in the courtroom (Skinner & Smith), it seems more likely that the complainant is simply unable to rehabilitate her preemptively destroyed credibility no matter if she conforms to rape myth standards of a ‘real’ rape victim or not. Women complaining of rape are made to undergo a hostile, contradictory, and frankly Kafkaesque ordeal wherein their motives, not their alleged assailants, are the ones on trial: they must adhere to illegitimate and immutable criteria for reasonable behaviour; while being subjected to shifting standards for arbitrating the veracity of their emotional responses, and are held to unreachable levels of necessary corroboration. The pervasive impact of rape myths as they proliferate in subconscious assumptions about alleged victims, even absent their intentional involvement by counsel, constitutes an impediment to the administration of justice. In effect, they create a culture of inherent skepticism and disbelief that precludes meaningful investigation into the veracity of the complainant’s claims: although “insufficiency of evidence is said to be both the problem and the reason for low conviction rates at trial and high acquittal rates before trial… the contrary argument is that myth, prejudice, and disbelief surroun[d] the reporting, investigation, and prosecution of sexual assault” (Cossins, 2013, p. 75). For this reason, some have suggested intervention to stem the influence of rape myths at trial.

II. Proposed Modes of Intervention & their Merits and Demerits

This section will include a very short introduction into two proposed methods of dispelling the undue guidance provided by rape myths in the context of the criminal trial, then provide an argument in favour of the provision of educative expert testimony over the method of judicial

addresses. Those in favour of interceding in order to ensure that rape myths do not exert an undue influence on assessments of credibility allege that rape myths are problematic primarily because “they assume [complainants] will respond to rape homogeneously in set ways” (Skinner & Smith, 2017, p. 444). Although this paper asserts that this standard of behaviour can become decidedly less homogeneous in order to best adhere to a culture of skepticism and distrust, Skinner’s point stands in regards to how the ‘proper’ and ‘improper’ behaviour of alleged victims is harshly policed. As such, the provision of instructions meant to educate the average juror on common myths and untrue stereotypes about sexual assault, either by an informed and credible expert or a judge, would “offer competing perspectives on motives for misunderstood behaviour” (Ellison & Munro, 2009, p. 210), thereby sensitizing (Cossins, 2013, p. 92) jurors to the complex, highly variable, and individualistic methods of reacting to rape. In this way, jurors can contextualize the actions of the complainant with reference to accepted scientific and social evidence, and may be less likely to rely on myth as a means of determining truthfulness. To proponents of intervention, it is essential and integral to improving the administration of justice for women who are having their allegations of rape heard at trial. To psychologists Robert Cramer and Tess Gemberling, who wrote a short guide on providing informed expert testimony in sexual assault cases, “myths that minimize the perpetrator’s responsibility or fabricate the victim’s responsibility for the crime will logically conclude with less punitive sentencing or not guilty verdicts” (Cramer & Gemberling, 2014, p. 123).

i. Intervention by Judicial Address

However, proposed methods of combating rape myths are not equally viable. Marina Moriarty makes the case that the most beneficial and least disruptive mode of intervention is an address to the jury by the presiding judge. She states that if a credentialed expert witness were permitted to give testimony to dispel rape myths, it might pose other problems:

“There is the risk… that the jury may rely too heavily on the expert’s testimony and allow the expert’s conclusions to overwhelm their own their own evaluation of the evidence… defense attorneys argue that this kind of testimony impermissibly bolsters the [complainant’s] testimony, invades the jury’s fact-finding function, and, at worst, comments directly on the guilt of the defendant” (Moriarty, 2006, p. 182).

When considered in light of the trial conditions discussed earlier in this paper, Moriarty’s concerns are fundamentally premised on unsound assumptions. The jury enters their fact-finding role already ‘spoiled’ by unconscious adherence to falsehoods about the legitimacy of rape claims; in this context, expert testimony would not unduly privilege the complainant and prejudice the defence, but would rather compensate for an existing imbalance. There exists a large body of jurisprudence which posits that, at present and without intervention, “sexual assault trials are weighted against complainants and in favour of acquittals because of the extent and influence of juror misconception” (Cossins, 2013, p. 95). It is difficult to accept Moriarty’s argument that allowing for the provision of third-party expert testimony would so greatly impugn the effective administration of justice as to render the jury ineffectual, as this claim is being made in a context where the adjudication of rape trials is already

considered by legal scholars to be a dysfunctional endeavour (Cramer & Gemberling, 2014, p. 122).

Furthermore, her claim that “the jury will likely believe that the expert has superior knowledge and may substitute their assessment of the complainant’s credibility for that of the expert” (Moriarty, 2006, p. 192) is also unpersuasive, due to the exact nature of rape myths and how they impugn a complainant’s credibility at trial. This argument relies on the assumption that jurors’ conclusions are independent and impartial assessments of the most likely elements of the case at hand. While in any other instance this is likely true, rape myths have a quality which sets them apart from any other ingrained method of evaluation in which a juror might employ to make sense of a case: rape myths are “prejudicial, stereotyped, or false beliefs… they are misinformation, not a lack of information” (Cramer & Gemberling, 2014, p. 124, emphasis added). It has already been demonstrated that even in circumstances where a complainant has provided corroborating evidence of a physical assault, that juries will substitute a mythic fabrication of conjectural events to retain their disbelief of the complainant. Regarding rape myths, the simple truth is that an intervening expert would have superior knowledge to a layperson, considering that the layperson in these circumstances is versed in myth, not fact. It is unlikely that any competent counselor would engage a juror in a murder trial who held the sincere, deep-seated belief that murder victims only died to stab wounds when the victim was really asking for them. Annie Cossins succinctly rebuts this proposal in a less tongue-in-cheek manner when she states: “[regarding] the objection [that] expert evidence will bolster the complainant’s credibility… none would object to forensic evidence being admitted which supports a complainant’s evidence” (Cossins, 2013, p. 113).

Moreover, research that has been undertaken on the efficacy of expert evidence in rape cases has indicated that, even though juries could stand to benefit from an expert’s instruction, it is not as if they blindly take the expert’s assessment on faith when presented with conflicting or difficult evidence. Nancy Brekke and Eugene Borgida conducted three consecutive

empirical studies on the ways in which jurors internalize and work to comprehend expert testimony within the larger context of evidence provided throughout the course of an assault trial. Their conclusions serve to dispel the notion that expert testimony would unduly influence the jury to entirely give up their own assessment of the complainant’s evidence. While the expert’s testimony may hold sway over lay jury members, “it is then up to the individual juror to decide what implications these group data [accumulated from expert intervention] have for their judgements about the victim and the defendant in the case at hand” (Borgida & Brekke, 1988, p. 373). In essence, although some may consider expert testimony to be disproportionately interested, when evaluated in totality alongside other means of assessing the case it is likely to fulfill its intended purpose of providing largely impartial contextual expansions of areas of misinformation.

In addition, given the insidious nature of rape myths, it is hard to believe that “an impartial judge could better educate the jury about common behavioural patterns displayed by victims of sexual assault than an expert witness” (Moriarty, 2006, p. 198). Rape myths are unfounded assumptions that are so pervasive that they have been found to be present in the minds and actions of jurors when considering complainant testimony in separate, independent studies which were conducted decades apart (Borgida & Brekke, 1988, p. 376) and in jurisdictions that vary between multiple countries. These stereotypical biases which implicate rape victims in their own victimization seem to be extremely widespread unless an individual is particularly compassionate or explicitly aware of the facts which debunk such myths. Why should the legal community be expected to take on faith that the judge’s commitment to impartiality will override entrenched misogynistic beliefs, when studies on the prevalence of rape myths in courtrooms have demonstrated that judges are often found to be professing the very rape myths that Moriarty claims they would rally against? Skinner and Smith, in their observation of real sexual assault trials in England and Wales, noted that “the judge who made the most

stereotypical comments [regarding the complainant] was also the one who most extensively used mythbuster comments in his summary” (Skinner & Smith, 2017, p. 459). This phenomenon is also noted by Jaqueline Horan and Jane Goodman-Delahunty, who relay an example of R v Lazarus, a trial in the Australian context: “while the trial judge concluded that the complainant [did not consent]... she was persuaded by the fact that the complainant did nothing physical to prevent the [assault]” (Goodman-Delahunty & Horan, 2020, p. 708). In practice, judicial impartiality is susceptible to the same prejudices that uneducated jurors may hold.

Skinner and Smith speculate that this occurs when legal professionals undergo sensitivity training to better equip them to adjudicate sexual assault trials, but are not meaningfully challenged to contest or reflect upon their internal prejudices in any concrete way (Skinner & Smith, 2017, p. 453). Their calcified assumptions about the complainant’s inherent untruthfulness then remain to

influence jury directions and questions made directly to the parties over the course of the trial. As such, the culture of skepticism which impedes the proper administration of sexual assault trials is not addressed in any meaningful way by judicial address alone. Perhaps in conjunction with expert evidence and with the addition of more meaningful judicial education, this method could be adopted to greater success.

ii. Intervention by Informed Expert Testimony

This final subsection will present the merits of informed expert testimony with regards to attempting to rectify the culture of skepticism which pervades assessment of complainant testimony by a trier of fact, then identify practical ways in which that method can be employed to function best. The most effective means of combating stereotypes and allowing the complainant’s testimony to be introduced in a manner that is as free from prejudice as possible is to incorporate the testimony of an

educative, rather than a clinical, informed expert. In the context of sexual assault trials, the distinction between clinical experts and educative experts is found in the particular focus of their evidence, not necessarily its context. Clinical experts, usually licensed practicing psychologists, would provide specific diagnostic evidence on the conduct and demeanor of the complainant herself; educative experts would instead provide context regarding the existing psychological literature on reactions to rape and liken this to the complainant’s circumstances, but would refrain from commenting on her exact behaviour (Cossins, 2013, p. 96-97). This educative expert could be an academic, a sexual assault counsellor, or a social worker.

When advancing the specific goal of promoting rape myth dismissal and enhancing complainant credibility, the testimony of educative experts is of more value than clinical experts. Their expert informed testimony is “more likely to be admissible and to survive challenges for exclusion by the defence”, as it is rare for educative experts to be challenged for presenting opinion evidence on whether or not the complainant is telling the truth given that they provide contextual and not specific evidence (Cossins, 2013, p. 97). As well, the process of attending a clinical psychologist (and usually a sexual assault nurse examiner) in order to facilitate their testimony can be physically and mentally invasive for the complainant, which runs the risk of retraumatizing her (Golding et al., 2012, p. 500). Given the inherent contextual nature of the creation of an environment wherein a complainant’s testimony is persistently evaluated as less credible due to assumptions that are construed as fact, the introduction of actual evidence which serves the function of expanding that context and providing legitimate reasoning for ‘strange’ or ‘unusual’ actions has the potential to achieve a genuine shift in the trier of fact’s assessment of a complainant’s behaviour.

There has been a recent influx of empirical evidence which at once provides an evidentiary foundation for professing the merits of expert intervention and serves to inform experts willing to testify at trial how best

to go about it in order to effectively dispel rape myths. In fact, in the context of the United States, Brekke and Borgida provide an explicit framework of how an educative expert might go about giving testimony that provides ample context and likens hypothetical scenarios which relate to the complainant’s case, but does not run the risk of being challenged for providing an opinion on the truthfulness of her claims. They term this the specific hypothetical condition.

“Jurors listened to the standard expert testimony [debunking myths about rape], followed by an explicit attempt to point out the connection between the expert testimony and the case under consideration… [by posing] a legally permissible hypothetical example to the expert into which the critical features of [the case at hand] had been incorporated… the expert was then asked to comment on the hypothetical victim’s behaviour in light of the research literature” (Borgida & Brekke, 1988, p. 374).

In this case, the necessary hypothetical link from the ‘parallel’ scenario and its relevance to accepted literature (general) to the fact pattern of State of Minnesota v. McNamara (specific) provides the context necessary to broaden jurors’ scope of understanding beyond fallacious rape myths into commonly accepted fact. Furthermore, they found that the mock jurors who had heard the specific hypothetical evidence as opposed to the group who did not receive a hypothetical linkage “considered it significantly less likely that the victim consented… and viewed her as more credible” (Borgida & Brekke, 1988, p. 375). Therefore, concrete and meaningful educative expert testimony, which carefully considers existing contextual understandings of the myriad responses to rape and dispels myths, has a decisive impact on assessments of complainant credibility. Instead of constructing the complainant as a potential liar no matter the fact scenario, juries were able to reasonably assess the context of her actions and understand how they may have been sensible and rational to her in the moment. In this way, the complainant does not have to consistently work to absolve a ‘credibility debt’ from the moment she gives testimony; having an expert testify first has the practical effect of debunking rape myths.

Brekke and Borgida also provide a concrete example wherein explicit rape myth discussion in jury deliberations actually does decrease when exposed to expert testimony. They state that “in the absence of expert testimony, victim resistance was a dominant theme during more than 15% of the deliberation, and this discussion tended to be defence oriented”, while hypothetical expert groups “devoted less than 2% of the deliberation to the issue of resistance” (Borgida & Brekke, 1988, p. 382). Accordingly, the contentious problem of myth-based expectations of victim resistance which posed such an issue for Ellison and Munro is markedly less detrimental to the complainant after the introduction of educative hypothetical testimony.

Conclusion

The current state of adjudicating allegations of sexual assault are frankly abysmal. Rape myths are employed to denigrate the credibility of the complainant, and force them into an ordeal where they are treated as if they are the ones on trial due to an environment of inherently assumed skepticism. Opportunities to rehabilitate their credibility are slim due to the changing nature of credibility criteria which paints the complainant as a perpetual liar; this effectively results in low rates of conviction despite sound complaints. Although most legal scholars are united in the belief that some form of intervention needs to take place, conceptions of the most beneficial mode of intervention vary: while some favour judicial addresses, this method is susceptible to bias and low efficacy rates. Informed expert testimony currently presents the best option for addressing rape myths and providing enhanced context that would present the complainant as credible by shedding light on the realities of behaviour post-rape. Until the issue of rape myth prevalence in sexual assault trials is meaningfully addressed, female complainants who raise the charge of rape will continue to be condemned to a second-class justice system.

References

Borgida, E , & Brekke, N (1988) Expert psychological testimony in rape trials: A social-cognitive analysis. Journal of Personality and Social Psychology, 55(3), 372-386. https://www proquest com/docview/614310468?

accountid=9894&parentSessionId=PGRsMAFzO%2F4e%2FevFy1q9ylouHrO5t1wlbJIVz9QbLcg%3D &pq-origsite=primo&sourcetype=Scholarly%20Journals

Cossins, A. (2013). Expert witness evidence in sexual assault trials: Questions, answers, and law reform in Australia and England The International Journal of Evidence and Proof, 17(1), 74-113 https://heinonlineorg.proxy.library.carleton.ca/HOL/Page?

lname=&public=false&collection=journals&handle=hein journals/intjevp17&men hide=false&men tab =toc&kind=&page=74

Cramer, R J , & Gemberling, T M (2014) Expert testimony on sensitive myth-ridden topics: ethics and recommendations for psychological professionals. Professional Psychology: Research and Practice, 45(2), 120-127 https://www proquest com/docview/1515979666?

accountid=9894&parentSessionId=0%2BXioTd%2FSaxCiigEB%2BvR67shB%2FFUmTgJXqsU2DTm 8Fo%3D&pq-origsite=primo&sourcetype=Scholarly%20Journals

Ellison, L., & Munro, V. E. (2009). Reacting to rape: Exploring mock jurors’ assessments of complainant credibility British Journal of Criminology, 49(2), 202-219 https://www-jstor-org.proxy.library.carleton.ca/stable/23639518?sid=primo

Golding, J. M., Simcic, T. A., & Wasarhaley, N. E. (2012). Mock juror perception of sexual assault nurse examiner testimony. Violence and Victims, 27(4), 500-511. https://www proquest com/docview/1035299807?

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Goodman-Delahunty, J., & Horan, J. (2020). Expert evidence to counteract jury misconceptions about consent in sexual assault cases: Failures and lessons learned University of New South Wales Law Journal, 43(2), 707-737. https://heinonline-org.proxy.library.carleton.ca/HOL/Page? lname=&public=false&collection=journals&handle=hein journals/swales43&men hide=false&men tab= toc&kind=&page=707

Moriarty, M. (2006). Jury instructions, not problematic expert testimony, in child sexual assault Cases. Suffolk University Journal of Trial & Appellate Advocacy, 11, 181-200. https://heinonline-org proxy library carleton ca/HOL/Page?lname=&public=false&collect ion=journals&handle=hein.journals/sujoriapv11&men hide=false&men tab=toc&kind=&page=181

Skinner, T., & Smith, O. (2017). How rape myths are used and challenged in rape and sexual assault trials. Social & Legal Studies, 26(4), 441-466.

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The Imaginary Dichotomy between Cocaine and Ritalin

by Morgan Doxey

Keywords: Pharmacologicalism, ADHD, Cocaine, Ritalin

Introduction

In Canada, there is an apparent dichotomy between cocaine and Ritalin despite the lack of pharmacological differences (DeGrandpre, 2002). The dichotomy is formed by the vastly different meanings that we as a society attach to these drugs. On the one hand, you have a drug that allows children who suffer from Attention Deficit Hyperactivity Disorder (ADHD) to manage their symptoms to continue to succeed in things such as school (Canadian Center on Substance Use and Addiction, 2019). On the other hand, you have a criminalized harmful drug that makes people high (Canadian Center on Substance Use and Addiction, 2019). These two different opinions can be rooted in pharmacologicalism whereby one drug has the potential to harm society and is therefore criminalized to protect us from the danger it causes, and the other, namely an identical drug, is produced through a privileged drug market for pharmaceutical companies (DeGrandpre, 2002). Over the balance of my paper, I will develop the cocaine-Ritalin dichotomy that is prevalent and analyze it through a pharmacological lens. Cocaine and Ritalin are merely identical substances, but because of the “good versus bad drug” discourse that is outlined throughout pharmacologicalism, they are viewed vastly differently in society. In proving my thesis, I will begin by outlining what Ritalin and cocaine are, then I will describe pharmacologicalism. After defining my key terms, I will begin my analysis by showing the lack of differences between the two drugs. Throughout my analysis, I will rely upon rat studies, neurological processes, and Ritalin misuse to show how the two drugs are nearly identical but are differentiated through their social meanings.

What is Cocaine?

Cocaine is a stimulant drug that can be found on Schedule I of the Controlled Drugs and Substances Act (CDSA). When consumed, cocaine produces a euphoria that is associated with increases in energy, alertness, blood pressure, body temperature, and heart rate (Canadian Drug Summary, 2019). Cocaine is naturally occurring and can be derived from coca leaves, which are native to South America, Mexico, the West Indies, and Indonesia (Kundlacek et al., 2017). Cultures have historically used coca leaves during ceremonies and for religious purposes, as well as in medicine, as it may be used as a local anesthetic (Kundlacek et al., 2017). Initially, cocaine was seen as a highly beneficial drug for various problems; however as time went on, and society attached social ills to the drug, it became framed as a scapegoat to eradicate its existence. Cocaine was seen as a threat to society for its “mind-altering” and aversive effects that it can have on users (Kundlacek, 2017). Cocaine can be consumed in various ways; however, it is most commonly consumed orally, intranasally, intravenously, or by inhalation (NIDA, 2021). Cocaine has been painted as a harmful drug that causes social ills in society, yet depending on its form, there are worse social stigmas around it. For example, crack cocaine and powdered cocaine are illicit substances that have criminal sanctions associated with their possession. Yet, Numbrino, a nasal spray made from cocaine hydrochloride, is a pharmaceutical that may be prescribed by a doctor and is completely socially accepted. The same drug is both criminalized and stigmatized in one form yet accepted in another medicinal form. This dichotomy is due to the good versus bad drug discourse, which I will endeavour to critique through a pharmacological lens in my analysis.

What is Ritalin?

Ritalin, also known as methylphenidate, is a prescription drug listed on Schedule III of the CDSA that is currently used in the treatment of ADHD in both adults and children (Canadian Center on Substance Use and

Addiction, 2019). Ritalin is prescribed most commonly in pill form and is recommended to be taken once a day, every day for a specific medical purpose diagnosed by a physician (Canadian Center on Substance Use and Addiction, 2019). Although historically, Ritalin was used to treat narcolepsy, depression, and chronic fatigue in elders, in contemporary society, it is the most common drug prescribed for treating ADHD (Svetlov et al., 2007). Ritalin is not met with criticism in society, but instead, through its medicinal benefits, it is highly accepted and prescribed to very young children across Canada and the United States (Svetlov et al., 2007). Although Ritalin may be misused to produce euphoric feelings that are very similar to cocaine (Canadian Center on Substance Use and Addiction, 2019), Ritalin usage is met with vastly different social beliefs that I will continue to develop over the balance of this paper.

Pharmacologicalism

Through pharmacologicalism, certain drugs are believed to be inherently bad because of the social ills that they produce in society (DeGrandpre, 2002). Through this lens, the drug itself produces the evil through its inner essence, which is not impacted by any social or cultural forces (DeGrandpre, 2006). When the user consumes drugs, they also consume the essence of the drugs, which further elicits the belief that the evil is within the drug itself. Meanings associated with drugs are reduced to their chemical structure, so it is believed that drugs can be studied scientifically (DeGrandpre, 2006). Through modernization, pharmacologicalism took a scientific approach to studying the molecular essence of drugs, which created a space whereby some drugs were seen as angels (good drugs), whereas, others were viewed as demons (bad drugs) (DeGrandpre, 2006). For example, at the pharmacological level, both Ritalin and cocaine affect the brain in very similar manners, yet one drug is associated with filth, and the other is a cure!

The distinction between good and bad drug users is also crucial, as it creates a distinction between people who are medicalized and criminalized. The demonized drugs label people as addicts, whereas the good drugs are viewed as prescription medicines that are used to aid in a sickness or to cure a disease.

Not only do we demonize the drug, but also the person, which leads them to being labelled as addicts or “crack heads” etc., which may, in turn, cause them to internalize this label. Secondary deviance occurs when people accept the label that has been attached to them and conform to that role’s typical behaviours (Raybeck, 1991). If a person is labelled a drug addict for using a demonized drug such as cocaine, they may end up adopting a criminal lifestyle that is often associated with prohibited drug users.

Pharmacologicalism, at its core, may be broken down into two pillars of differential prohibition. On the one hand, you have the medicopharmaceutical industrial complex, and on the other, the drug abuseprison industrial complex. The medico-pharmaceutical industrial complex is governed by the Diagnostic and Statistical Manual of the American Psychiatric Association (DSM), and the drug abuse-prison industrial complex is reinforced through the Comprehensive Drug Abuse Prevention and Control Act (DeGrandpre, 2002). It is through differential prohibition that we see the divide between good drugs and harmful drugs. You have the good drugs that are associated with diagnostic criteria and the harmful drugs that are penalized through the criminal justice system. It is through this discourse that we continue to see cocaine demonized and Ritalin endorsed by society.

Analysis

Throughout the drug studies literature, many articles have been published that show the lack of differences between cocaine and Ritalin. Throughout my analysis, I will rely on rat studies, neurological processes, and illicit Ritalin misuse to illustrate the similarities between the two drugs while showing how the findings may be interpreted through pharmacologicalism.

Rat Studies

Nora Volkow has done extensive research in the field of Ritalin and cocaine. What is specifically valuable for this paper is her work with rats

that showed the similar pharmacological effects of Ritalin and cocaine. Throughout one of her studies on this topic, she hypothesized that Ritalin is very common to cocaine and could even be classified as synthetic cocaine (Fuenzalida, 2023). To test her hypothesis, Volkow gave rats a dose of IV Ritalin directly into the brain to examine the similar pharmacological effects it has with cocaine (Fuenzalida, 2023). After examining the differences, it was found that when rats are given IV Ritalin, the same mechanisms are activated in the brain, and the same pharmacological effects are present (Fuenzalida, 2023). Further, Volkow found that when the drugs are consumed, they bind to very similar sites in the brain and alter the levels of dopamine to produce highs (Fuenzalida, 2023). The difference, however, is the time that it takes for Ritalin to produce cocaine-like effects when taken in its prescribed form. Further, the amount of the prescribed form of Ritalin that would be needed to mimic “cocaine-like effects” was more significant than an average dose of cocaine (Fuenzalida, 2023). Volkow concluded that the drugs are the same; however, because of Ritalin’s pharmaceutical nature, we as a society

lationship between it and cocaine. Even d in very similar ways when they were nd cocaine, since the pharmaceutical n is a pill, we do not demonize it like we that the pill is to help treat those with k at it any further. As I will continue to empirical evidence that shows the vast caine and Ritalin. Yet, we continue to separate entities. Although Volkows’s s, an abundance of literature point to humans

eraction in the Brain

share numerous traits in common.

oteworthy similarity is the primary nism that occurs when the drugs are 2016). Specifically, when both of these fect presynaptic dopamine transporters, an abundance of dopamine levels that pse (Hacker & Rust, 2022). Both Ritalin opamine whereby it attaches to the which then inhibits dopamine uptake When dopamine uptake is inhibited by ns to accumulate with potency levels levels that would be present if cocaine etlov et al., 2007).

hat due to the way that Ritalin and dopamine in the brain, they produce s of one another (Vogel et al., 2016). the drugs when there is an increase in amine receptors are activated after the w et al., 2002). The intensity of the high correlates with the percent of dopamine transporters that are

blocked; however, for Ritalin to produce a high, it must block at least 50 percent of the dopamine transporters (Volkow et al., 2002).

In a study done by Vogel et al. (2016), they argued that due to the highly similar effects that cocaine and Ritalin have on the body and the brain, Ritalin may be used as a substitute when treating cocaine addictions. It was further noted that by injecting 0.5mg/kg of Ritalin into cocaine users, they felt a high that was nearly identical to intravenous cocaine (Vogel et al., 2016). When considering the similarities of the pharmacological effects, as well as the highs felt by users, it is incredibly evident that Ritalin and cocaine are very similar drugs. There is direct empirical evidence that shows the correlations between these drugs; however, we continue to accept Ritalin users but exile cocaine addicts. The difference between these drugs, which arguably allows for the acceptance of Ritalin, is the form in which it is taken. Through pharmacologicalism, we accept pharmaceutical drugs through the medico-pharmaceutical industrial complex because they are regulated through the pharmaceutical industry and given to patients for remedy (DeGrandpre, 2002). Ritalin is within this classification due to its medicinal nature. Even though it acts the same way cocaine does in the brain, so much so that users have even used it in replacement of cocaine throughout dependency programs, we continue to accept it as a good healing drug. When taken in pill form, Ritalin is released over time and does not produce the same reinforcing effects (Volkow et al., 2002), which further entrenches it into the medico-pharmaceutical industrial complex, but all it takes is a user to consume the drug differently for the effects to mirror cocaine. Doctors prescribe the dosages in pill form because it has a low reinforcing effect on users whereby uptake takes around 60-120 minutes, but when taken intravenously, this process only takes approximately 8-10 minutes (Volkow, 2002). This empirical data is evidence of the intense effects that Ritalin can have on users that are very similar to cocaine.

To continue, the same regions of the brain are engaged when either Ritalin or cocaine is consumed, which is further evidence that these drugs

are the same. According to Izenwasser, Werling, and Cox (1990), when cocaine is consumed, it inhibits dopamine uptake in the following areas of the brain: “the striatum, nucleus accumbens, and olfactory tubercle” (p. 305). Similarly, according to the same article, dopamine uptake affects these brain regions when Ritalin is consumed (Izenwasser, Werling, & Cox, 1990). Not only are the basic pharmacological processes the same for these two drugs, but they also affect identical areas of the brain. Figure 1.0 and Figure 2.0 are both Positron Emission Tomography (PET) scans of a brain on Ritalin and cocaine, respectively. As illustrated in the scans, very similar areas of the brain are lit up after consuming the substances. There are, however, differences in the colours that are depicted, with more red zones on the Ritalin scan than on the cocaine scan. As noted by Vogel et al. (2016), oral dosaes of Ritalin may be insufficient to produce the desired effects that mimic cocaine use. Further, Yano and Steiner (2007) note in their study that the way Ritalin is consumed is of the utmost importance to allow it to produce enough dopamine to elicit neural responses that mimic cocaine. More specifically, for Ritalin to produce an “effective high,” one that may replace the high of a cocaine user, intraperitoneal or subcutaneous methods are recommended (Yano & Steiner, 2007). Again, we see that if Ritalin is taken in the same way as cocaine typically is, the effects will be identical and activate the same areas in your brain with very similar levels of dopamine uptake. Because these are not the typical or prescribed ways to consume Ritalin, we ignore it and solely conceptualize it as the drug that is taken orally once a day as per the doctor’s recommendation. However, Ritalin is highly misused in society, which further illustrates the lack of differences that these drugs have.

Ritalin Misuse

Through pharmacologicalism, and more specifically, the medicopharmaceutical industrial complex, we view Ritalin as good because it is a drug that is prescribed after a diagnosis has been made. As stated previously, this pillar of differential prohibition is bound by the DSM, which contains the diagnostic criteria for ADHD,

pamongst many other diagnoses. Because Ritalin is the most commonly used treatment for children and adults with ADHD, we view the drug as good (Hacker & Rust, 2022). There are, however, increasing concerns with children being prescribed Ritalin as ADHD diagnoses have started to increase significantly to the point of overuse (Perring, 1997). Researchers argue that it is often doubtful that a young person sufficiently meets the criteria to be diagnosed with ADHD (Perring, 1997). Although, what about when this drug is misused, and users consume the drug intending to get high? Even though it is supposed to be a pill that people take once daily, researchers have found that the tablets often get crushed up and are snorted or injected, both of which are ways that cocaine is consumed (Vogel et al., 2016). Non-adherence to the pharmaceutical way to take Ritalin was found amongst the majority of patients who obtained the substance illegally and used it without a prescription (Vogel et al., 2016). Because Ritalin is a stimulant drug and is used to increase focus, as well as suppress appetites, it is highly misused by college and university kids across the globe (Svetlov, 2007). Further, because Ritalin has the potential to give “cocaine-like” effects, studies show that students are using the drug for party purposes that were similar to how amphetamines were used in the 60s (Svetlov, 2007). Other studies have mirrored these reports and found that when studying participants who used Ritalin without a prescription, they reported using it in substitution for cocaine (Vogel et al., 2016).

Ritalin has a great misuse potential and can elicit neural responses that are the same as cocaine, yet even in this sense, it is not demonized. When we attach meanings to drugs such as cocaine, we view them through the drug-abuse prison industrial complex and have laws in place that criminalize users. However, if you are using Ritalin in the same way, to obtain the same effects, you are seen vastly different. In the study done by Vogel et al. (2016),they found that 89% of participants obtained Ritalin illicitly because they craved it, and 72% obtained the drug because of the easy access they had to it due to its

ubiquity on the black market. Typically, when we consider the type of things that are bought on the black market, we think of things that are not legal and often consider them to be dangerous. Yet, because Ritalin is a socially accepted drug, we continue to normalize its misuse. Misuse of Ritalin is further evidence of the lack of differences that it has with cocaine. Students replace cocaine with Ritalin because either way, they feel the same. The two drugs are used in the same manner by users to ensure that they attain the desired results (Vogel et al., 2016). Through analyzing Ritalin misuse, the apparent differences that society believes it to have with cocaine become less and less clear. The two drugs are not different, and their misuse potential is yet another fact that proves this assertion.

Conclusion

To conclude, Ritalin and cocaine share a long list of similarities that ultimately render the drugs synonymous with each other. However,

even though the drugs share many traits and characteristics in common, Ritalin is met with acceptance in society, whereas cocaine is demonized. Through pharmacologicalism, we can understand these opinions because one drug is regulated through the medico-pharmaceutical industrial complex, and the other drug through the drug abuse-prison industrial complex.

Cocaine is viewed as a bad drug that is illegal to have and causes social ills, which leads us to want to eradicate its use in society and stigmatize those who use the drug. Ritalin on the other hand is one of the most commonly prescribed drugs for the treatment of ADHD, therefore it aligns with the therapeutic state, ultimately leading to its acceptance in society.

Cocaine is viewed as a bad drug that is illegal to have and causes social ills, which leads us to want to eradicate its use in society and stigmatize those

who use the drug. Ritalin, on the other hand, is one of the most commonly prescribed drugs for the treatment of ADHD. Therefore, it aligns with the therapeutic state, ultimately leading to its acceptance in society. Despite the therapeutic benefits that Ritalin has, it affects the brain in ways that replicate neurological processing that occurs when cocaine is consumed. It has been found in both rats and human studies that the reuptake of dopamine is inhibited by both of these drugs, which leads to a build-up of dopamine that at synapse causes a high. Nora Volkow found that when rats are given IV Ritalin directly into their brain, it is identical to cocaine and may even be classified as synthetic cocaine. Further, studies have shown that when humans take Ritalin through IV or snort the drug, the way it gets processed in your brain is identical to cocaine. Although this is not the way that Ritalin is prescribed to be taken, the drug is highly misused, specifically for its stimulant purposes. Even though Ritalin can be taken in the same way as cocaine, and it is used in replacement of cocaine, we still classify the drug through differential prohibition under the medico-pharmaceutical industrial complex. Society looks at Ritalin through a tunnel vision sense whereby they see the good that it causes for kids and adults who struggle with ADHD; however, when you broaden the scope, you may see the wider image of the drug. When you acknowledge the years of empirical studies and analyze the neurological processes and areas of the brain that are active and engaged when you take Ritalin versus cocaine, it is evident that these drugs are the same. On a pharmacological level, Ritalin and cocaine are synonymous, but on a societal level, they are vastly different.

Figure 1.0. PET Scan of the Brain on Ritalin

Figure 2.0. PET scan of the Brain on Cocaine

References

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AI and Sentencing

by: Emily Rowe

Keywords: Artificial Intelligence, Systemic Racism, Risk Assessment Tools, Criminal Sentencing, Charter of Rights and Freedoms

2020, The Parliament of Canada enacted the Directive on Automated Decision-Making onthepremisethat“[AI]technologiesofferpromiseforimprovinghowtheGovernment of Canada serves Canadians,” (Treasury Board of Canada Secretariat, 2022,). Under authorityoftheFinancialAdministrationActandthePolicyonServiceandDigital,the objectiveofthedirectiveistoensureAIsystemsaredeployedsuchthattheyreducerisks toCanadiansandfederalinstitutions,andimproveconsistency,accuracy,efficiency,and interpretabilityofdecisions.

In the context of criminal justice, AI refers to an algorithm that has the capacity to analyse information provided by agents of criminal justice, and to relate existing data to said information to assist legal professionals in making decisions (Shi, 2022,). In the domain of criminal sentencing, there is considerable disparity between judicial decisions (Shi, 2022,), hence the rise in discussion for an AI sentencing tool. Several nations have expressed great opposition to legislated sentencing guidelines under the belief that they reduce the number of aggravating and mitigating factors and their combinations considered (Shi, 2022). A computer system for sentencing support has thepotentialtoenablejudgestopasssentencesofgreateruniformitywithoutimpairing theirjudicialindependence.AStatisticalInformationSystem,orSIS,enablesjudgesto view statistics, case summaries, opinions, or other relevant information regarding the sentencingofrelatedoffenses(Schild,1998).InCanada,fourprovincesexperimented

withtheuseofSISinthelate1980s.However,participationwasvoluntaryanddespite having collaborated closely with architects of the system, judges refused to use it; their refusal is an indication that AI does not belong in the sentencing realm of criminal justice(Schild,1998).Computerscientists,legalexperts,andlaymenbelievethepassing of sentences should be exclusively human as a matter of principle to the justice system (Schild, 1998); however with the continued advancements to technology and the increasing backlog of cases awaiting trial (Department of Justice Research and Statistics Division, 2017), AI in sentencing practices is imminent and may be the best option to improve efficiency and reduce sentence disparity in the justice system. Nevertheless, it is crucial to understand the pitfalls of contemporary and proposed AI sentencing practices in order to devise an effective system that achieves justice for all. Throughanalysisofoperationalizedfairness,Canadianpolicy,andCharterviolations, I will argue that an AI sentencing software is not in the best interest of the public. In Part II, I will dive into the components of AI that prevent operationalized fairness, focusing on the reproduction of historical biases and lack of explainability of AI decisions. The following Part III will discuss the Directive on Automated DecisionMakingalongsidetheCanadianCharterofRightsandFreedomsinthecontextofAI forsentencing,includinganOakestesttoassessconstitutionalityofsuchapractice.

Artificial Intelligence is Incapable of Operationalizing Fairness Software can process countless issues in the same time frame it would take a human to handle one. At their best, a machine-human hybrid system could combine the scale and effectiveness of AI with the capacity of human courts to detect errors and maintain the necessary human element of the legal system (Wu, 2019). Routine procedures exhaust the judge’s mental resources, hence allowing a software system to remove such matters from judicial duties would allow the judge to prioritize their strengths in exercising judgement while humanizing and improving the law. However, the direction that hybrid machine-human systems are heading in is a dangerous path for criminal justice. Self-driving cars, for example, do not assist the driver, but drive the car itself, eliminating the need for a human driver. Further, speech control in the media is possibly the most

advanced hybrid machine-human system that has replaced what was once governed by law, and it is slowly eliminating the human element, becoming solely algorithmic (Wu, 2019). The elimination of the necessary human element of criminal justice creates a barrier between AI and operationalized fairness, a concept which AI is incapable of achieving. Operationalizing fairness requires ethical and logical design decisions on competing definitions of fairness that reflect the differing perspectives and priorities of society (Bauer & Lizotte, 2021). Operationalized fairness is unachievable through the use of AI for sentencing, as the government must outsource to private software developers to provide the algorithmic architectures to make sentencing decisions. This is problematic as private parties are permitted to maintain their confidentiality under the claim of trade secrets, therefore eliminating any mechanism for accountability, and those government agents employing the systems do not have the intellectual means to comprehend the architectural makeup or internal functions of the algorithm (Crawford & Schultz, 2019).

1. Governments Outsource to Private Third-Party Software Developers

Outsourcing to private third-party software developers indicates a lack of oversight during the production process of the algorithm. Private actors cannot be expected to have the same goals and values as the major society. In addition, as they are not held to the same standard of accountability under the constitution as official government agents (Crawford & Schultz, 2019), these actors should be considered self-serving. The lack of constitutional guidelines for these software companies permits developers to code whatever they please into their algorithm regardless of society’s values and priorities, thus creating an obvious avenue for the miscarriage of justice. The justice system is a complex domain of society, with sentencing being a particularly complicated aspect that is poorly understood by the general public. Innumerable misconceptions and exaggerations about the justice system can be found in the media, and without proper education and experience it can be incredibly difficult to

decipher what is real and what is exaggerated or fake. To make reliable sentencing decisions, AI must comprehend sentencing principles and purposes. AI developers are computer scientists and software engineers, and therefore lack sufficient legal experience and understanding required to effectively carry out justice, making them susceptible to the misconceptions and exaggerations in the media.

Moreover, big data is at the core of AI systems, using mathematical modelling to analyze relevant sentencing factors from past cases and quantifying these factors in relation to the case at hand (Shi, 2022). Firstly, digital case files are a relatively new concept to the justice system (Siepp, 2016); there is an abundance of paper legal documents that would either need to be digitized or left out of the AI databank, therefore eliminating the statistical significance of an output. Should these documents become digitized, the statistical significance of the output is further jeopardized, as sentencing principles and the law itself have adapted with the changing beliefs and values of society over time; despite

Chinese sentencing principles are weighed depending on the case at hand, requiring judicial discretion to apply the appropriate weight (Shi, 2022). However, the State Council of the People’s Republic of China is heavily against judicial discretion, as sentence disparity is a substantial issue in the Chinese justice system (Shi, 2022). Employing a system to achieve the objective of same case, same sentence equalizes sentences through one dimension, the criminal act, and neglects the Chinese sentencing principles of education and prevention, focusing solely on retribution (Shi, 2022). The case of Zhao Chunhua is an excellent example of a disproportionate sentence resulting from the use of AI and a lack of judicial discretion. Chunhua was charged with illegal possession of firearms and sentenced to 3.5 years imprisonment for using toy guns in her booth at a carnival (Jin 01 Criminal Final No.41 ((2017) 津01刑终41号)). The same case, same sentence objective coded into AI and the lack of judicial discretion prohibited relevant factors of intent and harm from being considered, therefore subjecting her to a disproportionate sentence for a crime she was not guilty of. An accountability framework which holds private developers accountable to the same extent as government officials is necessary to avoid such miscarriage of justice.

In the context of public administration, accountability requires the actor to justify their conduct while they await judgement with the potential for punishment (Busuoic, 2020). Employing private software developers to conduct government duties places them in a position of power and therefore demands accountability. The Canadian Charter of Rights and Freedoms can act as evidentiary support for this statement, as it is in place to protect the public from misconduct of state actors and to hold them accountable. Meaningful accountability first and foremost requires transparency of agent conduct (Busuoic, 2020). However, as aforementioned, outsourcing to private developers makes transparency a virtually unachievable objective.

2. Artificial Intelligence Lacks Transparency

Operationalizing fairness is impossible without insight into the processes and reasoning behind a decision, both to enable ongoing evaluation of the law and to build community trust and accountability. Algorithms consist of complex neural networks and multiple levels of internal processing to which even the system engineers struggle to interpret (Busuoic, 2020). Such a neural network can be hundreds of layers deep, entailing millions of combinations of features and weights contributing to an outcome, making it no longer identifiable which factors were valued heavier in a decision (Busuoic, 2020). Private vendors of AI software being permitted to maintain their confidentiality creates an obvious barrier for transparency however even if the algorithm was made publicly available, it may well be unintelligible. Manually altering the number of parameters measured in a decision is not a viable solution either. Excessively limiting the number of parameters results in the lumping of dangerous offenders and offences with petty crimes of the same nature; too many parameters limits the number of corresponding cases, therefore eliminating the statistical significance of the correlation (Schild, 1998). Transparency is a necessary requirement to the evaluation of the law, as it permits assessment of the constitutionality and effectiveness of the law; without insight into contemporary functions and applications of a law in question, it is unknown whether it is fulfilling its intended purpose or causing more harm than good.

As aforementioned, China’s application of AI for sentencing prioritizes the objective of same case, same sentence. With judicial discretion prohibited, AI is solely permitted to use factors within its database however there is no universal template or guideline to fill out case notes, consequently making its database unreliable. AI only has available what the judge has written in their notes, and not all judges prioritize or value the same factors, therefore creating discrepancies within the data even for the same cases. Decisions posted publicly also tend to lack legal reasoning, written in layman’s terms so as to be more explicit to the general public

impossible to change (Shi, 2022). Regardless, a fair trial requires each factor to be weighed in accordance with the case at hand, as each case is unique, and every accused has a different combination of relevant risk and mitigation factors. To adopt such an AI system in Canada would violate the Canadian Charter of Rights of Freedoms, as will be discussed further in Part III.

To add, some decisions are prohibited from being published publicly, further hindering AI’s scope of knowledge. Privacy is maintained for cases involving minors, trade secrets, national secrets, and cases resolved by settlement, ergo AI’s databank is incomplete and unreliable (Shi, 2022). A solution to this would be to grant AI developers special access to legal files containing the privileged information in order to obtain the full picture of the law to code into their algorithm. However this would violate numerous privacy protection laws (Office of the Privacy Commissioner of Canada, 2019), and in turn antagonize the public, as AI developers are private parties under no obligation or accountability standard to honour the

privileged information.

Psychological research regarding the use of computer systems to make human decisions has revealed an automation bias which acts as a moral buffer separating the human from accountability for their decision (Busuoic, 2020). This separation suspends the human inclination to question a decision and encourages blind faith in technology, creating strong implications for accountability (Busuoic, 2020). To add, this automation bias creates a shift towards rule-driven justice, as opposed to the Canadian objective of equitable justice. In Canada, judicial independence and impartiality are crucial to ensure constitutional order and to maintain public confidence in the administration of justice (Valente v. The Queen, 1985). This indicates, should AI be implemented into Canadian sentencing practices, judicial discretion should continue to play an important role. However, psychological studies demonstrate, in

public (Shi, 2022). Furthermore, the weight of each factor is essential to determine similarity and relevance of other cases and is therefore impossible to change (Shi, 2022, p. 137). Regardless, a fair trial requires each factor to be weighed in accordance with the case at hand, as each case is unique, and every accused has a different combination of relevant risk and mitigation factors. To adopt such an AI system in Canada would violate the Canadian Charter of Rights of Freedoms, as will be discussed further in Part III.

To add, some decisions are prohibited from being published publicly, further hindering AI’s scope of knowledge. Privacy is maintained for cases involving minors, trade secrets, national secrets, and cases resolved by settlement, ergo AI’s databank is incomplete and unreliable (Shi, 2022, p. 134). A solution to this would be to grant AI developers special access to legal files containing the privileged information in order to obtain the full picture of the law to code into their algorithm; however this would violate numerous privacy protection laws (Office of the Privacy Commissioner of Canada, 2019), and in turn antagonize the public, as AI developers are private parties under no obligation or accountability standard to honour the privileged information.

Psychological research regarding the use of computer systems to make human decisions has revealed an automation bias which acts as a moral buffer separating the human from accountability for their decision (Busuoic, 2020, p. 832). This separation suspends the human inclination to question a decision and encourages blind faith in technology, creating strong implications for accountability (Busuoic, 2020, p. 832). To add, this automation bias creates a shift towards rule-driven justice, as opposed to the Canadian objective of equitable justice. In Canada, judicial independence and impartiality are crucial to ensure constitutional order and to maintain public confidence in the administration of justice (Valente v. The Queen, 1985, para 15); this indicates, should AI be implemented into Canadian sentencing practices, judicial discretion should continue to play an important role. However, psychological studies demonstrate, in

in time, judges will employ reduced levels of discretion, as AI separates them from public scrutiny for any undesirable decision they impose (Shi, 2022, p. 142).

3. Artificial Intelligence Reproduces and Intensifies Historical Biases

Within the Criminal Justice System

It is no secret that race and the criminal justice system have a problematic history, and the increasing use of technological aids will only exacerbate this problem. Facial recognition systems demonstrate exceedingly higher error rates for Black, Indigenous, and people of colour (hereafter referred to as BIPOC) (Busuoic, 2020). To add, current algorithmic architectures used by U.S. courts for bail decisions have been flagged as biased against Black defendants (Busuoic, 2020). Outsourcing to private programmers and a lack of transparency into the internal functions of AI poses the threat of reproducing and intensifying historical biases engrained in the justice system.

Achieving operationalized fairness in the domain of criminal sentencing requires an intersectional approach to ensure the negative experiences of marginalized groups are understood and not reproduced upon the introduction of AI. Intersectionality articulates that it is unsafe and unfair to assume that something advantageous to multiple single axes individually will continue to be advantageous when they intersect (Bauer et al., 2021). As aforementioned, private software companies are not held to the same standard as government bodies in regard to the production of new legal instruments and standards. Furthermore, there is no system in place, currently or proposed, to assess program developers for personal bias, and a lack of transparency indicates an obvious conflict of public interest. They are under no obligation to consider or respect different intersections and how these intersections create different experiences for the same situation. Codes are created inhouse by these private companies with no traditional forms of public input, therefore privatizing public justice (Wu, 2019).

Risk assessment is a widely used practice of the justice system that analyzes aspects of an individual’s life to determine the level of risk they would pose to society as a free individual. Research reveals these risk assessment tools include risk factors that function as a proxy for race, particularly factors of socioeconomic status, having a family member with a criminal history, and residing in high crime/poverty-stricken neighborhoods (Crawford & Schultz, 2018). Policing history in Canada demonstrates BIPOC are disproportionately targeted by law enforcement, hence such factors act as a proxy for race (Tator & Henry, 2006). Introducing AI to the conversation, AI is shaped by the information within its databank, and such risk factors may be regarded as pre-existing biases in the underlying data; even if not directly coded into the algorithm, AI will adopt biases through patterns and combinations of other variables (Bauer et al., 2021). To apply data that has been deemed significant to risk assessment in the past to contemporary applications of AI would reproduce and intensify historical biases within the justice system, ultimately creating a negative feedback loop. Furthermore, without thorough insight into the decisional factors considered by AI, systemic and historical biases will absolutely be reproduced, as virtually no issue will arise. To avoid recreating history, we must learn from it, and to learn from it requires transparency, a concept AI is incapable of providing.

Artificial Intelligence as a Sentencing System is Unconstitutional Canada’s Directive on Automated Decision-Making Does Not Include Sentencing Using AI Within Its Scope

Canada’s Directive on Automated Decision-Making (henceforth DAM) outlines the requirements that must be met to ensure responsible and ethical application of automated decision-making systems (Treasury Board of Canada Secretariat, 2021). The DAM is successful in acknowledging the issues of reproducing and intensifying historical biases, and a lack of transparency. However, AI as a sentencing tool is not currently within its scope, and the way the DAM is written does not leave

room for an AI sentencing system to be included in the future.

Firstly, to ensure deployment of such systems reduces risk and leads to efficiency, accuracy, consistency, and interpretability of outcomes, the DAM requires a formal assessment of the impacts of the system. The Algorithmic Impact Assessment (henceforth AIA) is designed to improve comprehensibility and manage risks associated with automated decisionmaking systems (Treasury Board of Canada Secretariat, 2022). The AIA begins with a series of risk and mitigation questions in which the employer of the system must provide responses (Treasury Board of Canada Secretariat, 2022). As aforementioned, requiring human assessment of countless relevant factors and their combinations defeats the purpose of employing AI for sentencing. The AIA will assign an impact level ranging from Level I to Level IV to determine which guidelines apply to the system in question. A classification of Level IV is assigned when the decision will highly impact the rights, well-being, and economic interests of an individual or the public (Treasury Board of Canada Secretariat, 2021). Classification of Level IV requires the final decision to be made by a human, with the system being used as a suggestion (Treasury Board of Canada Secretariat, 2021). This requires an AI sentencing tool to be a machine-human hybrid system, with the judge ultimately making the final decision. The emphasis on the human making the final decision demonstrates Canada’s doubt in AI’s capacity to yield meaningful and ethical decisions.

In addition to performing an AIA, the DAM requires the publication of the final AIA results on the open government portal, as well as proactive disclosure regarding where algorithms are being applied to support transparency. At impact levels III and IV, the DAM requires a plain language description of the system and decisional factors (Treasury Board of Canada Secretariat, 2021). In complex cases, an additional simpler decision-making model may be required to achieve explainability of results (Treasury Board of Canada Secretariat, 2021). However, the use of two models may yield different decisions for the same case, making the

resulting explanation misleading an therefore requiring further assessment the case (Treasury Board of Cana Secretariat, 2021) The need for furth assessment defeats the purpose employing AI for sentencing, as it primarily adopted for efficiency. A aforementioned in Part II, source cod consist of complex neural networks wi countless parameters and combination therefore making a plain langua explanation impractical and near impossible. Additionally, to convert tho parameters and their combinations into plain language explanation would be gruelling task. There is already a backl of cases within the justice system, hen adopting such a practice would counterproductive as this requires tim and manpower; resources the justi system cannot afford to expen Furthermore, when source code is own by the government of Canada, it must released as an open source where possib Whereas source code owned by priva developers is safeguarded to permit acce and testing of the software when need (Treasury Board of Canada Secretaria 2021). The DAM fails to specify where, more importantly who will safeguarding the source code; kept possession of private developers presents

government and accountability software be e DAM requires standard quality rld of technology of pre-production d the software of under specific ). This process is oduce an ethical however test replicate the to an extent e limits to what omplex nature of number of ore limits), that counted for by tions within the fall through the unreliable and tencing system. not include any untability should w it. In the event ourced to private e employer of the share the DAM hey are aware of Board of Canada Secretariat, 2021).

To reiterate, private parties are not subject to government standards or policies, and they are permitted to maintain confidentiality (as this was not specified within the DAM), hence a need to implement proper measures of oversight and accountability. To add, if developers are given the DAM to build their system, they should also be provided with the Criminal Code and Charter of Rights and Freedoms to ensure ethical use of power and application of the constitution.

2. To Use AI as a Sentencing System Violates the Canadian Charter of Rights and Freedoms section 11(d) (R. v. Sherratt, 1991), and prejudice against members of the accused’s social or racial group (R. v. Williams, 1998). The term independence embodies the traditional constitutional value of judicial independence. The relationship between the adjudicator and others involved, including the public, must be marked by a form of intellectual separation to allow the judge to render decisions based solely on justice and the law (Mackin v. New Brunswick (Minister of Finance), 2002). The requirements of justice and the law are arguably unquantifiable, human concepts that would be difficult to code accurately

implement an AI system to tence offenders would violate the arter of Rights and Freedoms tion 11(d), the right to a fair and blic hearing by an independent and partial tribunal. The term partiality refers to the state of mind the tribunal in relation to the cumstances of a particular case alente v. The Queen, 1985). Bias ward a verdict has been recognized the courts pertaining to personal erest (R v. Hubbert, 1975), judice from pretrial publicity

and ethically. As aforementioned, cases range from easy to complex, requiring specific and unique interpretations of the law, a practice which AI is incapable of conducting. The test for independence is whether a reasonable and informed individual perceiving the relevant statutory provisions in their full historical context would conclude the tribunal is independent (Valente v. The Queen, 1985). Given everything mentioned in Part II, it is plausible to infer that a reasonable and informed person would view AI sentencing as an absurd practice. Judicial independence serves not as an end in itself, but as a means to ensure a reasonable perception of independence and impartiality to preserve constitutional order and public confidence in the administration of justice (Valente v. The Queen, 1985). Explanations provided in Part II demonstrate a high unlikelihood that the public will remain confident in the administration of justice should AI become a sentencing tool. As for constitutional order, this is unachievable with an AI sentencing system as such a practice violates the Charter and is not justified under section 1 of reasonable limits.

1.

Violation of Charter section 11(d) is not justified under section 1 of Reasonable Limits

Section 1 of the Charter subjects its rights and freedoms to reasonable limits as prescribed by law that can be demonstrably justified in a free and democratic society. Persuasive evidence is generally required to justify a limitation on rights and freedoms, and evidentiary support is absolutely required when scientific or social scientific evidence is available (R v. Oakes, 1986). Both Parts II and III of this paper provide social science evidence to summarize the unconstitutionality and unethicality of AI as a sentencing tool. To be prescribed by law means the limit must be outlined in a government policy presenting binding rules of general application; as opposed to those rules that are administrative in nature, such as guidelines or interpretive aids for government officials (Greater Vancouver Transportation Authority v. Canadian Federation of Students - British Columbia Component, 2009). According to the DAM, an AI sentencing system must be an interpretive aid, not a decision maker

(Treasury Board of Canada Secretariat, 2021). Thus by this definition, AI is administrative in nature and therefore limitation of the Charter is not justified. To be prescribed by law also requires a limit to not be vague, but rather precise and ascertainable (R. v. Nova Scotia Pharmaceutical Society, 1992). Vagueness of a limit or law, as defined in section 7 of the Charter, indicates a lack of precision in that it does not provide sufficient guidance as to the scope of the prohibited conduct (R. v. Nova Scotia Pharmaceutical Society, 1992). As such, a redraft of the DAM is required to allow more precision regarding the rules applicable to different system models, as well as to include provisions addressing accountability of system developers. Where a discretionary decision engages Charter protections, the decision maker must first consider relevant statutory objectives (Doré v. Barreau du Québec, 2012). In the context of AI for sentencing, as it is not a current practice in Canada. The statutory objectives of AI sentencing applied in China’s practice will be used to determine whether the limit on section 11(d) is reasonable. The statutory objectives of China’s AI model are efficiency and sentence uniformity (Shi, 2022). The Oakes test is to be applied flexibly in relation to the factual and social contexts of each case (Canadian Broadcasting Corporation v. New Brunswick (Attorney General), 1996). From a social perspective, AI sentencing research demonstrates a likelihood of public dissatisfaction and loss of confidence in the administration of justice. From a factual standpoint, an AI sentencing system would not align with the DAM nor the Charter.

The first step of the Oakes test questions whether there is a pressing and substantial government objective to limit the Charter (R v. Oakes, 1986). The Supreme Court does not accept cost and/or administrative convenience alone as pressing or substantial objectives, therefore making efficiency an invalid justification (Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2020, paras 152-153; Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia, 2007, para 147; Nova Scotia (Workers' Compensation Board)

v. Martin, 2003; Figueroa, supra; Eldridge v. British Columbia (Attorney General), 1997; Remuneration of Judges of the Provincial Court of P.E.I., 1997; Schachter v. Canada, 1992; R. v. Lee, 1989; Singh v. Minister of Employment and Immigration, 1985). The provisions in section 1 of the Charter include a section that specifically addresses infringement of judicial independence under section 11(d), clearly stating an infringement can only be justified “where there are dire and exceptional financial emergencies caused by extraordinary circumstances” (Conférence des juges de paix magistrats du Québec v Quebec (Attorney General), 2016). Canada is not in an exceptional financial emergency thus violation is unjust. Further, employing an AI sentencing system requires hiring software developers and/or purchasing the software (Crawford & Schultz, 2018), indicating such a practice is not a viable option should Canada enter a financial state of emergency. The second step to the Oakes test questions proportionality, with 3 elements used to assess whether the objective and the means to achieve it are proportionate to one another (R v. Oakes, 1986). Firstly, there must be a rational connection between AI sentencing and sentence uniformity and efficiency (R v. Oakes, 1986); a rational person would not conclude an AI sentencing model is the best method to achieve uniformity and efficiency. The measure to determine the connection must not be unfair or based on irrational considerations. To reiterate, AI sentencing would absolutely be an unfair practice, and arguably irrational as justice and the law are subjective and unquantifiable. Secondly, the limit must infringe upon the right no more than is reasonably necessary. To measure reasonable necessity, courts may turn to laws and practices in other nations and jurisdictions (R v. Oakes, 1986). As aforementioned, AI sentencing practices in other nation’s fail to demonstrate a necessity for the limitation of rights. Further, four provinces utilized a Statistical Information System which proved unsuccessful, ultimately being discontinued (Schild, 1998). Lastly, the element of final balancing requires proportionality between advantageous and harmful effects of the particularly concerned with the

benefits the measure will yield for the collective good (R v. Oakes, 1986). In terms of public good, the advantages of AI sentencing do not outweigh the harms, as it is an avenue for the government to further assert their power and unfairly limit the rights of individuals. In general, any limitation of a Charter right is inappropriate in the context of criminal law where the government is the sole antagonist (Irwin Toy Ltd. v. Quebec (Attorney General), 1989; R v. Laba, 1994; Lavallee, Rackel, and Heintz v. Canada (AG), 2002), and in regard to AI sentencing, the government is the sole antagonist thus making the violation of section 11(d) unjustified and unreasonable.

Conclusion

As the developing world continues to make technological advancements, the concept of artificial intelligence being used in everyday life is not a farfetched image. AI refers to the capacity of a computer system to simulate human behavior. Currently employed across multiple public sectors of society to reduce manpower and improve efficiency, AI is not far from expanding into the realm of criminal sentencing. Canada’s Directive of Automated Decision-Making regulates applications of AI; however due to the risky nature of proposed AI sentencing systems, a redraft would be required to include sentencing in its scope should Canada wish to adopt AI sentencing practices. Through analysis of operationalized fairness, the Directive on Automated Decision-Making, and the Charter of Rights and Freedoms, it is revealed that AI sentencing software is not in the best interest of the public. The threat of reproducing and intensifying historical biases, and a lack of transparency and accountability for AI sentencing decisions, reveals unconstitutionality of such a practice and would ultimately bring more harm than good to the people of Canada.

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Literature and the surrounding discourse convincingly suggest that data acquisition, data manipulation, and certain data driven practices that power AI algorithms reinvent systemic racism into the framework of our criminal legal system (Brayne, 2017; Mulholland & Pele, 2023) As our criminal legal system shifts towards automatization practices it is imperative that we critically examine how AI-data driven justice will further marginalize an already historically precarious group of people The problem primarily stems from the historical biases embedded in the data set used to train AI algorithms Historical data reflecting the legal system’s prejudice and biases against certain social groups has the potential for AI tools to inherit and amplify these inequalities. Brayne’s (2020) research within the Los Angeles Police Department and their use of PredPol, demonstrates the deep integration of data-driven practices in law enforcement and its systemic reliance on historical data that is not devoid of racial biases. Brayne (2017) articulates how AI tools are trained on vast datasets of faces to identify or verify individuals in images or video feeds When these datasets do not represent the public, the AI systems are less accurate in recognizing faces from underrepresented groups- often BIPOC communities (Robertson, et al, 2020) This lack of representation is not merely a technical limitation but a reflection of deeper societal and systemic biases that have historically marginalized BIPOC groups The implications of this in a policing context is significant as law enforcement agencies consult these technologies biases in AI algorithms results in higher rates of false identifications among BIPOC communities, leading to wrongful arrests, detentions, and an overall increase in the surveillance of their livelihood (Brayne, 2020; Robertson, et al , 2020) Although AI technology has only been found used in the policing institutions of the criminal legal system in Canada, a crossexamination of its current use in US courts can assume how it may become operationalized in the Canadian context (Khademi & Honavar, 2020; Constantine, 2023) An analysis of COMPAS- a tool used in US courts to determine risk assessment for offenders- found that it was biased against African American defendants (Buskey & Woods, 2018) COMPAS was used on pretrial arrestees and was determined to falsely flag black defendants as prospective offenders, wrongly labelling them at almost twice the rate as white defendant’s (Buskey & Woods, 2018) The COMPAS model misclassified white arrestees at a lower risk more often than it did for BIPOC groups (Buskey & Woods, 2018) This grave systemic racial injustice was because of the reliance of the Neyman-Rubin potential outcomes in AI algorithms (Khademi & Honavar, 2020). The Neyman-Rubin potential outcomes formula casually inferences potential outcomes from cause-and-effect data (Khademi & Honavar, 2020). This issue demonstrates the danger AI legal decision-making has in the court systems if it is not vetted properly. if historical legal decisions show a pattern of harsher sentences for BIPOC individuals for similar offenses compared to their white counterparts, an AI tool informed on that dataset has the capability to exacerbate biased decisions Without proper consultation from BIPOC groups and considerations of how historical data may prejudice BIPOC groups, the dataset can profoundly affect the individual lives of BIPOC people Their ability to acquire bail and parole or have fair sentencing will be significantly infringed upon The implications of such biases are profound for BIPOC communities, leading to inequitable legal outcomes, erosion of trust in the legal system, and barriers to criminal legal system reform Given the issues with algorithmic bias demonstrated through models such as facial recognition technology; BIPOC individuals could face unjust legal outcomes, including harsher sentences or being unjustly targeted by predictive policing algorithms If legal decisions are to be influenced by biased algorithms, addressing the underlying issues of systemic inequalities and discrimination becomes increasingly challenging (Ntoutsi et al , 2020) Addressing these challenges not only requires transparency in the use of AI tools in a legal contact but also the voices of members of the BIPOC community Through this research project I will be investigating the shifts towards automatization in components of the criminal justice system; specifically in court processes and policing practices, examining how this affects the perceptions of the criminal legal system in informed BIPOC members This research project seeks to discover how different BIPOC actors within the criminal legal system sphere conceptualize how AI tools interplay with Ontario’s current legal framework This research builds upon existing literature in the field of AI and legal system processes, most notably, the work of sociologist Sarah Brayne, on her influential work on facial recognition AI and predictive policing that found to disproportionately marginalize BIPOC communities (Brayne, 2017). Similarly, this research project seeks to explore the nuances of the phenomenon of automated justice that extends beyond policing practices into adjudicative court processes and proceedings Additionally, this research project aims to fill an empirical gap in the discourse surrounding the perceptions of BIPOC communities on the use of AI in the Canadian criminal legal system The goal of this research is to use the findings of this research as a site of mutual aid informing policy considerations on the impacts of automated justice processes on BIPOC communities This endeavour including forwarding the findings of this research in spaces such as city hall and the Canadian Government Directive on Automated Decision-Making, where positive change to societal conditions can be mobilized In addition, the research seeks to contribute to the discipline of criminology and sociolegal studies by producing nuanced empirical data to the discourse of this phenomenon; further, by means of anecdotal accounts and informed opinions of members of the BIPOC communities’ perceptions of predictive AI technology in the criminal legal system The guiding research question of this project ask what the perception from informed members of the BIPOC community are concerning shifts towards automated justice processes in the criminal legal system This question seeks to encapsulate the lived experiences and professional/academic expertise of members of the BIPOC community on the changes of our criminal legal system towards automated justice processes By seeking to understand the perceptions of members of the BIPOC community, this project provides a platform to amplify the unheard BIPOC communities’ attitudes towards AI tools in the criminal legal system The sentiments of informed members of the BIPOC community express a degree of ethos that pluralizes the discussion Generations of systemic racism, discriminatory policies and practices within the criminal legal system likely explains why BIPOC communities at twice the level of their white counterparts, have little trust or confidence in the criminal legal system (Cotter, 2022). For instance, Chenane and Horning (2023) explain how the police killing of George Floyd and other deadly police interactions in the USA exacerbated the BIPOC communities’ mistrust in the police Understanding the level of trust and confidence BIPOC communities have in the criminal legal system after the killing of George Floyd is not only crucial for addressing systemic biases and implementing reforms but also plays a significant role in evaluating the effects of AI tools within the criminal legal system This understanding can inform the development and deployment of AI tools to ensure they are used in ways that reduce bias and enhance social equity, rather than perpetuating historical injustices It also highlights the importance of involving BIPOC voices in the conversation about AI in the criminal legal system, ensuring that these tools are developed and implemented with an awareness of and sensitivity to the unique challenges these communities face The Canadian criminal legal system currently employ predictive AI and decision-making AI technology in policing and primarily federal border agencies, respectively; however, for the purposes of this study, I will be examining the conditions of automated justice in the Ontario legislative landscape (Constantine, 2023; Purcell & Zala, 2020) Furthermore, I aim to enrich the discussion of this research project by connecting themes to the primary research question through sub-question: (i) whether BIPOC communities will be disproportionately affected by the use of AI decision-making in the criminal legal system, (ii) If the inception of AI tools in the judiciary would erode the trust and confidence BIPOC communities have in the criminal legal system, (iii) and whether the state is acting is doing their due diligence to premeditatedly safeguard against the potential infringements of AI This study focuses on the perceptions of informed members of the BIPOC community in the Ottawa and Toronto area I focus on legislation in the Ontario landscape as it pertains to the current status of AI tools used in the criminal legal system. The scope of the research studies geography is uniquely suited for this research as Toronto and Ontario are the likely cities that will implement AI tools in the criminal legal system. This assertion is founded on the notion that legal decision-making AI will drastically reduce the case backlog these two legal jurisdictions are facing. As well, Toronto and Ontario are both urban cities, rich with cultural diversity, in which situates the findings of this study more generalizable The population for this research project has carefully chosen to include four BIPOC individuals that possess specific insights and experiences relevant to the research topic The selection criteria were developed to ensure a comprehensive understanding of the issue from a different perceptions across the criminal legal system spectrum I was particularly interested in understanding the perceptions of the BIPOC community because of how literature demonstrates that AI technology disproportionately and target BIPOC communities (McSorley, 2022; Ntoutsi, et al , 2020) As such, I believe it was pertinent that I consulted with this community on the topic Their perceptions would not only include analysis through CRT frameworks of the issue but also anecdotal accounts that relate to their identity In addition, as articulated earlier, there is limited to no empirical data on the perceptions and voices of the members of the BIPOC community on the topic of AI tool in the Canadian criminal legal system Predictive AI, encompassing algorithms and data analytic tools designed to forecast future criminal activity and inform where police should be deployed, will be scrutinized throughout this research project By focusing on predictiveAI technologies like PredPol or Clearview AI, I can delve into nuanced ways AI is integrated into policing practice and how it shapes the experiences of those who are most surveilled by it Moreover, the scope of the research will delve into the various application of AI within the Canadian legal framework, such as legal decision-making in bail, sentencing, risk assessment and immigration asylum applications. I will cross-examine US courts and their employment of legal decision-making in the form of risk assessment tools- COMPAS (Khademi & Honavar, 2020). This will allow me to forecast and predict how it might apply to the Canadian judiciary. Next, risk assessment tools such as the Hare Psychopathy Checklist (PCL-R), the FSIR and VRAG are actuarial, paper-based calculation formulas, used by forensic psychiatrist to measure an offenders risk level (Chugh, 2022) It is paramount that I include this in my discussion not only because the Canadian criminal legal system currently use it but due to its potential transformation into a legal decision-making AI tool Proponents of risk assessment tools cite accuracy, efficiency, consistency, and enhanced professionalism in the tools contributions to legal decision making; in which, arguments that have now been adopted by proponents of AI in the courtrooms I have come to understand the topic through a critical theoretical paradigm of analysis which, has been exercised by the criminology and criminal justice program at Carleton University The program has trained my critical reflexivity in analyzing social phenomena through a critical framework Extensive review of critical criminology literature has enabled me to interpret this phenomenon as a displacement of power dynamics between social groups (Campbell, 2021) The epistemological grounding of this research will inherit a constructivist position- meaning that understandings from interplay between subject & object: subject constructs reality of object This research will be grounded by a critical paradigm with a specific focus on an emancipatory theoretical framework and supported by critical race theory, transformative justice, (Denzin & Lincoln, 2008; Delgado & Stefancic, 2001; Marx, 2015; Riegel, 1975) The use of various theoretical approaches that overlap one another provide this research project with a theoretical toolbox for a nuanced discussion Moreover, the over-arching theoretical application of an emancipatory framework aligns with the goals and objectives of this research project in mobilizing knowledge as a site of mutual aid

RESEARCHempirical

To view the completed research study, please visit the accompanying publication

Accountability in Ontario Policing: Examining SIU Outcomes for Racialized Police Involved Deaths

by Gurleen Bhatti

Keywords: Police oversight, Police accountability, Critical race theory, Ontario SIU

Abstract

Withgrowingpublicawarenessandangeraroundthelongstandingtrendof policeviolenceagainstracializedgroupsinCanada,callsforgreateroversight and accountability are being made by community organizers, activists, and academics alike. Despite attempts at police reform, Black and Indigenous communities, specifically, continue to be systemically targeted. My research sought to understand what the oversight body outcomes are for racialized victims of police involved deaths in Ontario. I sought to understand how systemicracialbiasplayedaroleinhowtheseoutcomesarereproducedand justified. Using a mixed methods approach, I used quantitative analysis to comparecasesofracializedpoliceinvolveddeathsinOntariointheTracking (In)Justice database with SIU oversight outcomes. I sought to identify any trendspertainingtotheSIUcaseoutcomesforknownracializedvictims,and the rate and extent of sentencing for the officers involved. For the cases in which charges were laid, I did a media analysis to get a closer look at what the charges were, how the public responded, as well as whether the officers were convicted or sentenced. In total, 53 cases were examined. Of these 53 cases,92%ofthemwereconsideredjustifieddeaths,wherethepoliceofficer’s useofforcewasdeemedwithintheconfinesoflegalforce.Theremaining8% of cases had charges laid against the officer, although only half of those resulted in court convictions. The analysis examines the results of the 4 cases that were charged, and how media and community discourse of racism and police accountability play out. The validity and impartiality of the SIU is brought into question in the analysis, where certain cases show blatant mishandling of investigations. This is particularly alarming, given that so many police incidents involve cases of racialized people, perpetuating trends oftargetedstateviolence.

To view the completed research study, please visit the accompanying publication

Consent as a Crime: An Analysis of S/M in the Canadian Sociolegal Sphere

by Victoria Burman

Keywords: BDSM, Socio-Legal Studies, Consent, Transformative Justice

Abstract

“Consent as a Crime: An Analysis of S/M in the Canadian Sociolegal Sphere” explores the topic of BDSM as it relates to its practitioners in their interactions with the law and society. The research is based upon two key questions: (1) what are the impacts of the labelling of sadism and masochism (S/M) in the legal sphere? and (2) what place does law hold in the lives of kinky individuals regarding criminalized consent and oppression? Using sex-radical, queer, critical criminology, and anarchist theories, this research qualitatively analyzes four semistructured interviews with BDSM practitioners and elucidates upon three key issues: (1) the morality of kink, (2) the evolution of consent, and (3) the lack of socio-legal support for BDSM practitioners. It argues that transformative justice must be applied in a three-tiered approach of education, re-integration, and collaboration to ameliorate the harms BDSM practitioners face in their day-to-day lives.

To view the completed research study, please visit the accompanying publication

The Effects of Social Media on the Facilitation of Justice in Canadian Criminal Trials

by Tiffany Kwan

Keywords: Social media, criminal trials, digital panopticism, network society theory, privacy

Abstract

Digital media is undoubtedly an essential aspect of many people’s daily lives, becoming an integral aspect of many social institutions and structures. In a digital age, information is widely accessible and storable, resulting in a loss of privacy. While social media makes for a more accessible and open criminal justice system, it simultaneously opens the doors for new forms of crimes, requiring the justice system to accommodate the various societal changes. The existing literature shows that there is a gap in empirical research that addresses the ways in which social media can impact the conveyed ideas of justice. Therefore, using a mixed methods approach employing semistructured interviews, case studies, and textual analysis, the theoretical research project seeks to fundamentally understand how virtual evidence and criminal acts and discussions facilitated on social media impact criminal trials and its associated ideas of justice. In addition, it aims to question the ethicalities of the inclusion of social media data as admissible evidence in criminal proceedings. Analyzed through a lens employing digital panopticism and network society theory, both the existing and proposed research demonstrates how digital media can evoke a sense of omnipresent surveillance and the various shortcomings within the criminal justice system in regards to the integration of social media. Based on the conducted literature review, moving forward, more empirical research should be conducted to thoroughly understand how social media impacts the justice system through the first-hand perspectives of its various actors. Additionally, the existing literature suggests the expansion and reform of existing legal frameworks and governmental caucus that accounts for digital technology that did not previously exist.

To view the completed research study, please visit the accompanying publication

Automated Justice: Understanding BIPOC Perceptions of Predictive-AI and Decision-Making AI in the Criminal Legal System

by Johne Quiambao

Keywords: BIPOC communities, Artificial Intelligence, Criminal Legal System, AI Transparency, Trust and Confidence, Emancipatory theory

Abstract

Thisqualitativeresearchprojectinvestigatestheperceptionsofmembersfrom theBlack,Indigenous,andPeopleofColour(BIPOC)communityontheuse of predictive-AI and decision-making AI in the criminal legal system. It is inevitable that our criminal legal system increases their reliance on AI tools withinthecriminallegalsystem;notwithstanding,thelackofconsultationand involvement from BIPOC communities. This study seeks to fill this gap by exploring the perceptions and lived experiences of BIPOC individuals regarding the prospective role AI will play in legal directives. The study approachesthisendeavourbyconductingsemi-structuredinterviewswithfour informed BIPOC participants. The interviews were designed to understand the deep insights into participants’ perceptions with AI in the criminal legal system,focusingonissuesofitsfuturerole,bias,transparency,andchangesto trust and confidence. The findings reveal a pervasive concern regarding the transparency of AI systems and their likelihood of disproportionately impacting BIPOC community by exacerbating racial biases; further, leading tomistrustanddiminishedconfidenceinthefairnessoflegalprocessesamong BIPOC communities. Participants emphasized the onus being placed on our governments and institutions to foster inclusive dialogue and development processes with BIPOC communities. It is pertinent that the voices of BIPOC communities are present in the ongoing discussion of implementing AI into our social reality. The implications of this study extend to policymakers, the judiciary, AI developers and community to call for an urgent need for regulationsthatmandatetransparencyandaccountability.

To view the completed research study, please visit the accompanying publication

Canada’s Game in Crisis: A Case Study of the 2018 Hockey Canada Scandal

by Rhys Traynor

Keywords: Hockey, Hockey Canada, sexual assault, gender-based violence, violence against women, sport-related violence

Abstract

Hockey is seen as Canada’s game with the sports being intrinsically tied to the Canadian identity. Yet in recent years, the culture surrounding the game has come under scrutiny, especially when players commit sexual assault against women. One of the most prominent of these cases is the 2018 Hockey Canada sexual assault scandal which involved some of Canada’s most famous athletes. The case involves multiple players from the 2018 Gold winning Hockey Canada U18 team, where it was alleged that they sexually assaulted a woman in London, Ontario. By using a case study approach paired with thematic analysis of media articles and committee hearings, it allows us to gain valuable insight into this case and situate it with in the greater context of sexual violence committed by hockey players. When examining the case, it becomes apparent that a culture of silence, protection and entitlement exist within the facts of this case, which perpetuates a culture of sexual violence against women. However, these cases are often constructed as not just a hockey problem but a problem in all of society, overlooking hockey culture’s role in perpetuating sexual violence. When the case became public knowledge, multiple actors took part in attempting to begin, changing hockey culture to prevent further violence against women. However, change only occurs when the gatekeepers of hockey culture, such as Hockey Canada, allows it to occur. This project also helps advance the ideas of sport related violence, where violence committed by athletes is not insulated, but has impacts on everyone besides just the victims of interpersonal violence.

To view the completed research study, please visit the accompanying publication

“Safety is more than just a one-time thing”: Student Experiences and Perceptions of Campus Safety Officers

by Kobe Woo

Keywords: safety, campus officers, policing, student perceptions, critical race, intersectionality

Abstract

School police officers and their presence on school grounds continue to be a debated topic. With evidence of historical colonial policing, literature shows that racialized students across gender identities experience surveillance by campus police. Though this literature exists, there is a gap in research surrounding Canadian student perceptions of campus officers. Through three semi-structured interviews with three undergraduate students, participants shared their perceptions of campus officers at Carleton before, during, and after they interacted with them. Four findings were developed by employing a critical race, feminist, and intersectional analysis. It was found that student definitions of safety are unique to individuals, confusion and lack of transparency exist surrounding the role of campus officers for students, students feel a lack of support from campus officers after an interaction with them, and students look to other resources to feel supported and safe on campus. Moving forward, campus officers must be held accountable for closing the gap in transparency between them and students. Universities must listen to the demands of students and actively support students in feeling safer on campus. I also encourage research to continue to take an intersectional approach to validate and lift the lived experiences of Canadian university students.

Thank you Faculty of Public Affairs for funding and supporting the symposium.

Thank you to the criminology supervisors:

Dr. Nicolas Carrier

Dr. Alex McClelland

Dr. Jeffrey Monaghan

Thank you to the criminology administrators:

Robin Dunbar

Gillian Dailey

Thank you to all executive members, contributing authors, and you, our readers.

Sincerely, Crime & Ethos

CRIME ETHOS & 2024

Carleton Undergraduate Criminology Journal