In September of 2012, a memo circulated to local defense attorneys by Community Legal Aid, the student-staffed legal aid clinic affiliated with the University of Windsor’s Faculty of Law, announced that the clinic would no longer be offering legal representation to men accused of domestic violence. While the clinic has since clarified that it will not represent men or women accused of domestic violence, other student legal aid clinics – including those affiliated with the University of Ottawa and Osgoode Hall Law School – continue to represent women charged with domestic assault while denying representation to men accused of the same.
Legal aid clinics are crucial to the provision of legal services to vulnerable sectors of the population. This contextualizes the danger of gender-based differential treatment, particularly when one considers the epidemic of access to justice problems in the province and that legal clinics are often a last resort for the criminally accused. Legal Aid Ontario employs a certificate-based system with very limiting eligibility criteria, which leave a large section of the Ontarian community unable to afford legal representation; these people turn to community and student-run legal aid clinics for assistance. Turning away men accused of domestic assault further limits the options of individuals who already have very few feasible opportunities to be legally represented.
The feminization of poverty and the intersectional experiences of women whose marginalization is compounded by their immigration status, race, ethnicity, disability, and sexual orientation is part of a feminist politic that, rightfully, exists at the core of many legal clinics’ desire to eradicate violence against women. But to deny men accused of domestic violence legal representation, while intended to further the important goal of eradicating violence against women, may actually have the inverse effect by creating/reinforcing the kind of institutional exclusion that has been linked to domestic violence. Thus, while clinics must always recognize that women are systemically more disadvantaged than men, the effects of men’s poverty are not only devastating for men, but also impactful for women. We cannot understand the interrelated phenomena of men’s and women’s poverty if we outright exclude one gender from the discussion.
At the heart of clinics’ gender differential policies is a problematic good/bad polarity of abused/abuser. While we certainly should never excuse the deeply problematic individual behaviour of men who are violent towards their partners, we should look to understand such a man as both abuser and abused – as someone who exercises individual agency and makes a deeply impactful decision to harm his partner, but also as someone who has sometimes himself perhaps been victimized by institutional marginalization. We must recognize that rejection, feelings of powerlessness, and inadequacy that are associated with poverty and that are at odds with the breadwinner social construction of masculinity. Insofar as men have been problematically socialized as providers, men who experience poverty are systemically and structurally denied the ability to replicate learned masculine behaviours and feel that they do not have control over this. Of course, it would be oversimplifying and reductive to say that domestic violence is only linked to income-based considerations; however, there is an important link between poverty and incidence of domestic violence that cannot be ignored.
If we accept that poverty and the systemic institutional exclusion of men is positively correlated with incidence of violence against women, then gender differential policies at legal clinics run counter to the very feminist politic they hope to promote. Legal clinics are misguided in denying representation to men accused of domestic violence because such a rejection represents yet another institutional barrier compounding their marginalization. Low-income men denied services at legal clinics may be forced to hire lawyers at rates they cannot afford, further compounding their economic difficulties. They may also have to proceed as an unrepresented litigant and experience bitterness as they navigate our complicated legal system alone. They may not be able to continue working or may be alienated by their family and friends.
Perhaps most importantly, these men will be denied the expertise of caseworkers who are experienced in handling poverty law cases. While sometimes students are preparing for and assisting at trial, caseworkers at legal clinics serve a number of other important roles, including advising clients of their procedural rights, assisting them to plead guilty where appropriate, accompanying them to set date or other court appearances, discussing potential outcomes and their practical implications, negotiating bail variations, and just simply listening to their lived experience. Therefore, to deny a legal clinic’s services to a male accused not only deprives him of actual representation at trial, but it also denies him the benefits of the multitude of services in which poverty law clinics specialize.
More disturbing still is that these men will not benefit from particularized programs addressing domestic assault, including caseworkers’ referrals to community services such as counseling or social assistance programming, as well as advocacy for diversion programs, including PAR (Partner Assault Response), a program run by the Anger Management Centre of Toronto. Clinic workers play a vital role in referrals and have access to an important network of resources that are instrumental to stopping violence against women. Eradicating domestic violence necessarily entails an educational component, and clinics are ideally suited to equip men with the resources they need to stop violent behaviour. Legal clinics therefore play an important two-fold role, not only in defending innocent clients, but in providing support and educational opportunities to those who have committed partner violence, thereby helping to break the cycle of violence. Gender differential policies deny male accused access to either of these important functions and, therefore, may reinforce patterns of spousal abuse.
A longer version of this paper was submitted as part of the Issues in Criminal Justice intensive, taught by Martin Friedland.
