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Sexual Assault in Canada

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Elizabeth A. Sheehy

Part II

18. Questioning “Expert” Knowledges

Sunny Marriner

Résumé

In her contribution to this section, Sunny Marriner echoes Jane Doe’s critique of the medicalization of women’s experiences of sexual assault and acknowledges, like Diana Yaros, how much authority feminist advocates have conceded to the “professionals.” Sunny argues that in spite of feminism’s powerful critique of the “psy-” disciplines, “psy-” “expertise” has thoroughly permeated legal space in the courtroom in sexual assault trials and extends far beyond to control the lives of women caught in the criminal justice and child protection systems. She demonstrates that both law and the “psy-” disciplines are profoundly inexpert on sexual assault, yet feminist expertise has been decentred not only by these disciplines, but also by feminists’ efforts to seek “professional” credentials to prove their own authority. Feminist expertise is grounded in political commitment to women’s equality and women’s experiential knowledge, as articulated by Jane Doe in this section, and must be reclaimed and reasserted by women’s centres and feminist advocates

Texte intégral

  • 2 Jane Doe, The Story of Jane Doe: A Book About Rape (Toronto: Random House, 2003) at 259.

The collusion of perhaps the two most powerful systems we have (legal and medical) to judge rape and assess guilt, when neither is versed in the true nature of rape, has set us down a dangerous path.
The Story of Jane Doe2

1I am foremost indebted to the many young women who have shared their knowledge with me on their paths of survival through violence, the state-care system, the legal system, criminalization, and incarceration. I am further grateful for the support and wisdom of the Sexual Assault Support Centre of Ottawa collective, past and present and, in particular, the enduring political commitment of Susan Havart. Thanks are also due to Diana Majury for assisting me in straddling the line between life and the academy, to Doris Buss, and to Linda Green (OISE) for her generous sharing and responsiveness to questions about resources.

  • 3 The use of the word “victim” here is deliberate, as victimization was ongoing through this process (...)
  • 4 “… an array of strategies used by defence lawyers to undermine the character and credibility of co (...)

2It was a terrible trial. A victim3 of brutal sexual violence was being forced to testify against her will, despite having repeatedly asserted she could not, and the days were not going well. Defence counsel were “whacking the complainant”4 with everything they had and she was going in and out of flashback on the stand. That this is what was occurring was patently obvious to me, sitting in the body of the court, and yet it was not openly acknowledged or identified by anyone in the room. Instead there were many long breaks and the court’s patience was wearing thin. During the breaks, the flashbacks continued, increasing in intensity, causing her to throw up, scream, and, several times, briefly lose consciousness. Eventually the Crown had to accept that they simply could not make her continue and they reluctantly requested an adjournment. Defence counsel fought tooth and nail and I was called to the stand to testify as to what I had witnessed while supporting the woman over the course of her testimony.

3What I witnessed was a woman being triggered repeatedly by a nonconsensual process; ruthless, repeated cross-examination; forced, descriptive repetition of the most terrifying experiences of her life while in a hostile space surrounded by entirely unsafe people; and close proximity to individuals accused of savage acts of violence against her. The result was increasing, ever-more terrifying flashbacks that left her physically, mentally, and emotionally debilitated.

4This was not, however, what I testified to. Instead, I was required to describe in detail for the court what movements the woman made, whether or not her eyes were focused, what her body was doing, what words she was saying, and whether she “appeared” to lose consciousness. I could describe everything about a flashback — what I couldn’t do was say the word “flashback.” Despite having spent thousands of hours with women in flashback over more than a decade of support work, this, according to the defence, would amount to expert testimony I was of questionable qualification to give.

5The judge, on hearing my description of what I saw, queried the Crown, “Were paramedics called?” When it was established that they were not, the judge expressed consternation, asserting that it would seem that an ambulance should have been requested. Had I been asked, I would have informed the court that what transpired was not extraordinary for women experiencing severe flashbacks, and that flashbacks do not constitute a medical emergency. I was not asked.

6Instead, the court expressed the opinion that this woman should be medically assessed for a possible organic cause, as the response could be indicative of a serious illness. Once an organic cause was ruled out, she should next certainly be assessed by a psychiatrist. The adjournment was granted with the judge’s strong suggestion to the Crown that they use the time to seek out expert advice and require the woman to attend for diagnosis.

7Ultimately, the Crown took the position that the unwilling woman had to undergo psychiatric assessment so an expert could render an opinion as to what was happening during her attempts to testify and on her capacity to go forward, before they would abandon the prosecution.

  • 5 Also VAW.
  • 6 Another key reason for this choice was that the events described occurred publicly.

8In over a decade of feminist political practice, this story is only one of many examples I’ve witnessed of a legal system divorced from any common sense ability to deal with survivors of sexual violence. I chose it to launch this discussion as it illustrates the legal and social fictions of “expertise” that have pervaded both the legal system and the violence against women5 movement as a whole.6 Here we see:

  • a Crown’s office substituting their “expert” opinion about a woman’s ability to testify for her own;
  • a judge, overwhelmed by her own lack of understanding of intense responses, believing that medical “experts” will demystify a non-medical problem;
  • a courtroom full of purported “experts” in trying sexual assault cases unable to notice or recognize when a survivor is in flashback on the stand;
  • a referral to “expert” psychological assessment for a “credible” opinion to prove to the Crown what the (apparently not-credible) woman herself already identified; and
  • the suppression of relevant experience that could have resolved significant questions before the court and spared the survivor further unwelcome intrusion on her body and mind.

9Throughout this episode, the spectre of “expertise” was invoked and, in each instance, the consequences were borne by only one person: the sexually assaulted woman.

  • 7 Sexual Assault Support Centre of Ottawa, online: <http://www.sascottawa.org>.

10To locate myself, I draw these observations from a body of thirteen years of work in a frontline feminist sexual assault centre collective. The Sexual Assault Support Centre [SASC]7 is a women’s equality-seeking organization with a basis of solidarity rooted in a theory of linked oppressions. As such, collective members believe feminist equality-seeking work must be, by definition, anti-oppression work and actively challenge racism, classism, ableism, heterosexism, colonialism, and other forms of oppression. We define our work with women survivors of violence as what I here term “feminist political practice,” as opposed to the simple provision of services, or “service work.” This feminist political practice includes providing support and advocacy to women using a survivor-based, survivor-directed model that acknowledges women as the experts in their own lives.

  • 8 Psychiatry, psychology, psychotherapy and, less so today, psychoanalysis. Many critics (early and (...)

11It might, at one time, have been unnecessary to begin this discussion with such a recitation of meanings, as they could be taken as implied in the term “frontline feminist sexual assault centre.” However, today’s changed landscape of sexual assault centre practice demonstrates that there is no longer a broad consensus about what role political location and engagement should play in the work of supporting survivors of violence. Instead, in a culture of increasing credentialism and professionalization, we see sexual assault centres moving ever-further from the radical challenges of feminism, the expert knowledge it developed, and its at-once hopeful and skeptical aspiration to alter the social terrain for women. Today, courtrooms and sexual assault centres have begun to bear startling resemblances since both spaces engage more and more deeply with psy-disciplines,8 whose claims to “expert knowledge” of women survivors of violence are arguably largely self-awarded.

12Critically engaging the concept of expertise is a gargantuan work in and of itself. What constitutes expertise? Who decides what is expert, and with what criteria? Do these criteria reflect women’s lived experience? How do expertise discourses and claims to expert knowledge lead us nearer or further from our equality-seeking aims? The psy-disciplines, the legal system, and the women’s movement have each held positions on what constitutes expertise within their own fields and in others. Each has mobilized notions of expertise in different ways, and seemingly to different and shifting ends. Employing expert knowledge sometimes appears quite formalized on the surface (as in the criteria for adducing expert testimony in court); on other occasions, the term “expert” is simply thrown down like a trump card without any apparent sense of obligation to back up the truth claims it implies. All argument on the matter must now halt, as The Expert has been invoked. A concept wielding such enormous power is surely one that equality-seeking organizations cannot afford to ignore.

13Under closer scrutiny it becomes clear that “expertise” is a less concrete, more contested arena than some of its vaunted claimants would have us believe. The apparent consensus on who has the right to speak, with what voice, and with what authority is actually a thin veneer at best, and often constructed for us by the very disciplines most invested in being seen as expert. This suggests that not only are we misled when we rely on psy-discipline authority in matters relating to women survivors of violence, but further that the deep, and mostly unacknowledged, permeation of this theory into legal space both exemplifies and reinforces the encroachment of expertise claims into social life and our social movements. What occurs in our legal system not only mirrors dominant discourses in society as a whole, but it also contributes to shaping those discourses, providing authority for them, and reinserting them into the populace with the newfound weight of legal validation. As the opening example demonstrates, psy-discipline expertise claims are deeply embedded in every stage of a legal process and are clearly influencing the thinking of most legal players. Despite this, critical analysis of expertise, law, and violence against women is often limited to a discussion of the role of expert witnesses or courtroom testimony. I submit that such a reductionist view paints a dangerously narrow picture of how psy-legal expert authority is employed with survivors of violence, and contributes to masking the reach of this power over them even when they are outside what is considered formal legal space. I argue instead that we must expand our understanding of how both “expertise” and legal space are considered, and begin to look much further afield than the witness chair to locate where and when psy-legal truth claims are acting upon women.

14This paper first confronts the psy-disciplines’ dubious claims to expertise about women survivors of violence, and next illustrates how those claims are reified rather than challenged through the power and deference they are accorded by the weight of legal authority. Through what Jane Doe called “the collusion of perhaps the two most powerful systems we have,” psy-discipline theory is translated into legally mandated action in the lives of women such that both domains expand their expert claims in a process of exponential reinforcement. In this generative loop of expert power, women’s anti-violence organizations play a crucial contributory role. Once critical sites in generating a body of women’s own expert knowledge, today a shift away from political goals in sexual assault centres increasingly serves to buttress legal and psy-discipline fictions about women survivors. Where resisting harmful expertise claims was once a pillar of frontline feminist organizations, the final section argues that those same claims are today adopted as arguments to professionalize, credentialize, and ultimately depoliticize feminist anti-violence work. By broadening our gaze and examining psy, legal, and feminist expertise claims as three parts of a larger whole, we can reveal the intersecting impacts of expert knowledges in the lives of survivors — impacts that are easily obscured when focussing only on the component parts.

  • 9 See K Anders Ericsson et al, The Cambridge Handbook of Expertise and Expert Performance (Cambridge (...)
  • 10 A logical maxim attributed to William Ockham that generally states, “entities should not be multip (...)

15Feminism teaches us that how we have a conversation often communicates as much as the words we say. A conversation about racism, for example, designed by white women in accordance with an agenda they set, with the players they choose to invite and using the process they deem most effective, does as much to reinforce white women’s position of power in the discourse as would choosing not to have the conversation at all. In keeping with these insights, I am mindful of who is invited to this table and acknowledge that paradoxes arise in the very act of writing this paper. There is an inescapable irony in using a largely inaccessible academic style and language to challenge the tendency of feminist equality-seekers to adopt ever-more inaccessible academic style and language. This paradox runs still deeper when we ask whether the concept of expertise can be critically engaged without invoking “the experts”? For experts there are, as the numerous scholarly works theorizing the concept demonstrate.9 The study of expertise has become an expert discipline in its own right, which is a notion that threatens to leave our heads spinning when beginning any analysis. In lieu of getting lost in ever-deepening levels of abstraction, Occam’s razor10 might shave off some layers of entanglement by suggesting the most common understandings and roles of expertise are probably also the ones holding the most sway in the lives of women.

PART I

Who Gets to be the Expert?

  • 11 See definition, online: <http://dictionary.reference.com/browse/expert>; and Ericsson et al, supra (...)
  • 12 K Anders Ericsson, “An Introduction to Cambridge Handbook of Expertise and Expert Performance: Its (...)
  • 13 Ibid at 4.
  • 14 Ibid.
  • 15 Julia Evetts, Harald S Mieg & Ulrike Felt, “Professionalization, Scientific Expertise, and Elitism (...)

16Most definitions of “expert” suggest that the term refers to someone “very skilled or knowledgeable” about a particular field.11 Of note is the fact that education, while listed as a characteristic of expertise, is not generally as heavily emphasized as experience or “practice.” Moreover, “knowledge” is clearly the preferred term. K Anders Ericsson, in The Cambridge Handbook of Expertise and Expert Performance, explains that expertise “refers to the characteristics, skills, and knowledge that distinguish experts from novices and less experienced people.”12 The same handbook, however, takes pains to point out that in many “domains” designated experts often “disagree and make inconsistent recommendations for action” and their performance may be indistinguishable from non-experts “even on tasks that are central to the expertise” [emphasis added].13 Ericsson specifically mentions psychotherapy as one of those “domains.” These less-identifiable “experts” must therefore rely on peer-recognition for their expert designation.14 Some sociologists argue that this reliance on peers to accord expert status inevitably creates “closure” in domains that rely on subjective criteria to determine skill level.15 Only those who already support and agree with the fundamental tenets of the discipline are involved in awarding credibility, thereby creating a self-perpetuating expert designation that can fairly be described as self-awarded. Ericsson, in summarizing, adds this most arresting observation:

  • 16 Ericsson, supra note 12 at 4.

Finally, Shanteau (1988) has suggested that “experts” may not need a proven record of performance and can adopt a particular image and project “out-ward signs of extreme self-confidence” (p. 211) to get clients to listen to them and continue to offer advice after negative outcomes. After all, the experts are nearly always the best qualified to evaluate their own performance and explain the reasons for any deviant outcomes.16

17While it may be unintentional, Ericsson’s overview thus suggests that individuals, and indeed whole domains, may still be considered expert even if their greatest consistency is that their expert predictions, opinions, and/or performances frequently turn out to be wrong. According to James Shanteau, as long as they are seen to be expert by others who already share their belief in the domain’s authority, or can convincingly present themselves as expert despite their unreliability, then “expert” status still holds.

18Questioning expertise, then, would appear a daunting and somewhat defeatist task. Closure and a lack of emphasis on outcomes mean that criticizing from anywhere other than inside the discipline itself may be dismissed as the misunderstandings of a “non-expert.” The “expert” status, in and of itself, acts as protection against challenge, insulating the knowledge or opinions said “experts” generate from critique by any but those who share the same investment in the discipline.

“Historically, the demeaning of women is an essential part of psychotherapy theory”17

  • 17 Dorothy Tennov, Psychotherapy: The Hazardous Cure (New York: Anchor Books, 1976) at 229.
  • 18 Paula J Caplan, The Myth of Women’s Masochism (New York: New American Library, 1985) at 28.

Like all salespeople, personality “experts” can be intimidating because of their aura of mystery because they want us to think they have some special knowledge. We are often left feeling we couldn’t possibly understand the subtleties of what they know, so we satisfy ourselves with relying on their expertise.18

  • 19 Susan Brownmiller, Against Our Will: Men, Women and Rape (New York: Bantam Books, 1975) at 305; an (...)
  • 20 See Barbara Ehrenreich & Deirdre English, For Her Own Good: 150 Years of the Experts’ Advice to Wo (...)

19Consider these reflections on expertise, then, in the context of the history of psy-disciplines with women. This history offers a primary example of a domain with a consistent record of being reliably inexpert about women. The Woman of the psy-disciplines has variously suffered from hysteria, masochism, narcissism, passivity, penis envy, Castrating Woman Complex, Angry Woman Syndrome, a desire to have sex with her father which causes her to imagine having been sexually abused,19 and on and on. Our wombs and reproductive systems have been described as the biological seat of our instability or outright insanity:20

  • 21 Tennov, supra note 17 at 220–21.

The psychoanalytic orientation, which has dominated clinical psychology, psychiatry, and social work for decades, is one in which women are viewed as biological, intellectual, social, and moral inferiors of men… In the writ ings of psychotherapists, especially psychoanalysts, outright hostility toward women is a recurrent theme. Entire books have been written which attempt to validate misogynist views.21

20This history of attributing women’s distress to their sex effectively allowed the patriarchal psy-disciplines to erase male culpability in abuse and ensure that men’s dominant position in society did not come under fire. After all, if women’s discontent was biologically determined, why would changing anything in their immediate environment or society as a whole alleviate the problem? As Dorothy Tennov comments:

  • 22 Ibid at 220.

Many women with just grievances against the social order considered themselves, and were considered to be, psychologically ill and received “treatment” at the hands of practitioners who interpreted their difficulties as the outcome of internal pathology rather than as a reaction to oppressive social forces.22

  • 23 See Brownmiller, supra note 19 at 305–07; Tennov, supra note 17 at 108.
  • 24 Caplan, supra note 18 at 30.
  • 25 Peter Breggin, Toxic Psychiatry (New York: St Martin’s Press, 1991) at 336.

21The record of psy-disciplines’ various perspectives on sexual violence is profoundly disturbing. From Freud’s pronouncement that women’s stories of sexual abuse were actually fantasies they wish were fulfilled, to the odious theory that sexually abused children were likely “seducers” of the abusers,23 to the claim that women love sexual violence and male battery due to our inherently masochistic personalities,24 the psy-disciplines have denied, condoned, excused, and perpetuated sexual violence against women and children. Further, they have placed the responsibility for women’s oppression, misogyny, male violence, and sexual abuse squarely on the shoulders of females, whether they are children, partners, or mothers, in both theory and practice. Psychiatrist and biopsychiatric critic Peter Breggin writes, “Both poles of modern psychiatry, the biopsychiatric and the psychoanalytic, have led the way in covering up the victimization of women and female children and in exonerating men in general.”25

  • 26 Two notables are sociologist Erving Goffman, and psychiatrist and academic, Thomas Szasz, who rema (...)
  • 27 Ehrenreich & English, supra note 20 at 316.
  • 28 Bonnie Burstow, Radical Feminist Therapy (London: Sage Publications, 1992) at ix.
  • 29 Caplan, supra note 18 at 140.
  • 30 See discussion in Burstow, supra note 28 at ix; and Carol Gilligan, In a Different Voice (Cambridg (...)
  • 31 Tennov, supra note 17 at 80–86.

22One of the great contributions of the second-wave feminist movement was a wealth of critical writing about the psy-discipline’s long history of presenting the female as pathological. Amid a rising tide of voices challenging psy-discipline truth claims,26 this era saw an explosion of woman’s resistance to the predominantly white, male psychiatrist’s “expert” claim to authority in defining her and her apparent pathologies.27 Phyllis Chesler’s influential Women and Madness “argued convincingly that women are in double jeopardy: Women are institutionalized both for veering from their socially proscribed role and for overly conforming to it.”28 Chesler further “demonstrated … [that] understandable emotional reactions in women are often labelled as pathological, but understandable emotional responses in men are not classified as signs of disturbance.”29 Chesler was far from alone in her skepticism of psychiatric “expertise” about women. This period saw the inherent masculine bias of the psy-disciplines beginning to be first identified, and then challenged, by a broad range of critics, some of whom were members of the very disciplines they unmasked.30 The psy-disciplines themselves now appeared to be under the microscope. Studies began to show that “recovery” rates for people who did not seek psychotherapeutic treatment were actually higher than for those who did.31 Women, tired of being told their experiences of oppression and particularly of male violence were either imagined or their own fault, began to reject the men of the psy-disciplines’ claims to expertise on women. They instead began building their own systems of support, grounded in the experiences of those who could be said to be “very skilled” and “knowledgeable” about their distress — other women, most particularly, other survivors of male violence. It was through this refusal to accord the “expert” credential to psy-knowledge that the first sexual assault and rape crisis centres were born, and it is clear that, for a time, many women believed the psy-disciplines had been thoroughly, and perhaps permanently, discredited.

That Was Then, This is Now

  • 32 Similar arguments claim that racist and sexist oppressions no longer exist as these groups are ost (...)
  • 33 Clare Shaw & Gillian Proctor, “Women at the Margins: A Critique of the Diagnosis of Borderline Per (...)
  • 34 Caplan, supra note 19 at 91.
  • 35 To which Caplan engagingly asks, “Do half a million American women go crazy once a month?” (ibid a (...)

23So what happened? Far from discredited, the psy-sector’s claim to expert knowledge of survivors is today more entrenched than ever before. A persistent societal habit of severing today’s knowledges from their roots has resulted in the all-too familiar “that was then, this is now” argument, rejecting the notion that disciplines, theories, and thinking are still strongly girded by their historical biases. Current psy-discipline discourse accordingly paints a picture of its anti-woman pedigree as being a relic of a long-distant past that is no longer relevant.32 In reality, much of the critical scholarship has only been introduced in the last twenty-five years. The Myth of Women’s Masochism, for example, was first published in 1985. Many of the first psy-discipline critics are still alive, kicking, and publishing today. Arguments that the psy-disciplines have somehow managed to purge their pathological-woman origins in this brief time span appear to crumble in the face of new “women’s diagnoses,” like Borderline Personality Disorder33 and Self-Defeating Personality Disorder which, as Paula Caplan illustrates,34 is arguably Masochistic Personality Disorder dressed up with a new name. The pièce de résistance was delivered with the addition of Premenstrual Dysphoric Disorder (known to the laywoman as “bad PMS”) to the Diagnostic and Statistical Manual [DSM] IV in 1994.35 Clearly the psy-disciplines continue to see women’s basic physiology as synonymous with disorder.

  • 36 Selective Serotonin Reuptake Inhibitors, or anti-depressants.
  • 37 Janet Currie, “The Marketization of Depression: The Prescribing of SSRI Antidepressants to Women” (...)
  • 38 Breggin, supra note 25 at 164.
  • 39 “Off-label” is the practice of prescribing drugs outside of their approved purpose and/or to group (...)
  • 40 Shankar Vendantam, “FDA Links Anti-depressants, Youth Suicide Risk” Washington Post A01. (3 Februa (...)

24A shift in language from “psychiatric problems” or “psychological problems” to “mental health issues” is equally troubling, although it is cloaked in a guise of benevolence and destigmatization. “Mental health” obviously implicates everybody at one time or another, as everybody can be said to have better or worse mental health at different times in their lives. Through the simple use of language, the potential market for psy-discipline services and pharmaceutical interventions has expanded from a relatively small, stable proportion of the population to today including infants, toddlers, and everyone who has ever struggled through a difficult period or simply felt pervasively unhappy. Far from destigmatizing, this language has instead encouraged widespread labelling, without the guilt. It was once a significant statement to claim that someone suffered from “psychiatric problems.” Further, those wielding this label usually had to supply some empirical support, however faulty. Today we hear people, including those in the VAW movement, referring to “women with mental health issues” on a daily basis. Newly minted, pharmaceutically marketed “mood” and anxiety disorders are being diagnosed in women at anywhere from 1.6 to 6 times the rate of men, depending on the condition, and two-thirds of SSRI36 prescriptions are written for women.37 These facts cast still more doubt on the claims of many psy-practitioners that, despite their sordid history with women, “things have changed.” A wholesale return to biopsychiatric truth claims has kept apace with a flood of psychiatric medications geared to treat every conceivable emotion, despite, once again, a flood of critical literature on efficacy, long-term impacts, and lack of testability. Several SSRI’s have been associated with violence and suicide,38 including some of the most popular off-label39 prescriptions given to children.40

25If anything, neo-liberal individualizing strategies in psy-disciplines are once again explaining women’s moods, emotions, and coping through brain chemistry. Far from demonstrating that psy-disciplines have abandoned their quest to control the individual — the core purpose of a discipline that claims the ability to define “normal” and then trains people to be more like it — this emphasis on brain chemistry illustrates that the psy-disciplines have yet to accept that structural factors like racism, sexism, and poverty shape how people feel and cope. Even those psy-practitioners who do claim to recognize the impact of structural inequality tend to defend biomedicalization by arguing that the drugs assist people in “coping better” with their bad situations, potentially allowing them to escape more quickly. This stance not only suggests that it is a deficiency of the individual that they have yet to find “paths out” of societal oppression, but it is also the same argument that supported teaching abused women to cope better with abusive fathers and husbands, rather than raising an alarm about epidemic levels of violence perpetuated against women and children. This stubborn failure to learn from what they would have us dismiss as “early mistakes” only casts further doubt on the psy-discipline’s modern claim that their expertise has grown.

26Neither the history synthesized above, nor the fact of the psy-disciplines’ collusion in violence against women, are revelatory. Rather, there is a wealth of scholarship, and innumerable personal narratives and historical accounts, all laying bare these same facts. As noted, a large number of the well-known critics of psy-discipline claims to expertise about women have themselves been psychiatrists or psychologists. If it is true that claims to expert knowledge are leveraged to ensure that psytheorists need only be evaluated by other psy-theorists (as opposed to their patients or their efficacy), it has been of critical importance that these credentialed voices spoke, and continue to speak, out.

27But to what effect? How have the psy-disciplines been held to ac-count for this record and to what extent, if at all, has their claim to expert status been diminished? Despite a poor track record that would, in most other fields, connote a demonstrable lack of skill and knowledge, we see social institutions, including the law, continuing to turn to those who have proven least adept in this area and granting them top status in the expert hierarchy. The paradox emerging from the history, the evidence of survivors, critics in the same disciplines, and detailed feminist analysis is that psy-credentials may actually indicate that the holder is inexpert. Despite this, we legally and societally maintain and rein-force the fiction that the credentialed are the experts and consequently their voices are privileged and relied on almost exclusively in the legal domain.

Enter the Theorists

  • 41 I have instead opted to remain rooted in political practice, meaning the method privileges observa (...)

28At this juncture it might be useful to take a moment and look at where some of these themes have been articulated before. To this point, I have deliberately chosen to avoid straying into abstract theory;41 however, some legal theorists and interested feminists will have already made links between these observations and the work of Michel Foucault. While rendering a Reader’s Digest condensed version of Foucauldian theory is done at one’s own peril, his theoretical framework offers a useful lens through which to consider these questions of expertise, truth claims, power, and knowledge. Many feminist theorists have taken up Foucault’s work as compatible with a feminist analysis (although not without some struggle), and I suggest that there may be some demonstrable validity to this, as we move through the next sections.

  • 42 Michel Foucault, “Governmentality” in Graham Burchell, Colin Gordon & Peter Miller, eds, The Fouca (...)
  • 43 Michel Foucault, Discipline and Punish: The Birth of the Prison (New York: Random House, 1977) at (...)
  • 44 David Garland, “Review: Foucault’s ‘Discipline and Punish’ — An Exposition and Critique” (1986) 11 (...)

29Foucault’s much-discussed concept of “governmentality”42 posits that the concentration of power has been dispersed from government (the state) to be located in technologies of governance, such as discipline, surveillance, and regulation. In what has been termed “the conduct of conduct,” disciplinary technologies effect a totalizing yet subtle process of normalization, such that the subject and/or subject population becomes an active participant in their own control and regulation. The “everywhere and nowhere” nature of disciplinary mechanisms operates on physical, mental, spatial, and theoretical43 levels to erase and/or correct deviance, thereby rendering populations more governable. These mechanisms have been intriguingly termed “the colonization of the mind”: their workings are total, yet meant to remain largely invisible, leaving the individual to believe she is regulating herself on the basis of independently formed ideas. It may be helpful to think of disciplinary mechanisms as systems of “production, domination and socialization”44 that work in globalizing ways to generate individuals and populations with specific types of beliefs, thoughts, norms, and behaviours. In this way, discipline is not only practiced on us, it is built in all around us and thus, ultimately, in us.

  • 45 Gary Gutting, “Michel Foucault” in Edward N Zalta, ed, The Stanford Encyclopedia of Philosophy, on (...)

30The disciplinary society generates and collects knowledge about individuals and populations. Foucault presents power and knowledge as inseparable: “… at least for the study of human beings, the goals of power and the goals of knowledge cannot be separated: in knowing we control and in controlling we know” [emphasis added].45 Further, Foucault links truth claims to power and knowledge, as feminist legal theorist Carol Smart discussed in Feminism and the Power of Law:

  • 46 Carol Smart, Feminism and the Power of Law (New York: Routledge, 1989) at 9.

Foucault uses [truth] to refer to the ensemble of rules according to which the true and the false are separated and specific effects of power attached to the ‘true’ (Gordon 1980: 132)… he is interested in discovering how certain discourses claim to speak the truth and thus can exercise power in a society that values this notion of truth.46

31Here the links to what this project has been terming “expertise” are obvious. The “experts” largely self-identify their own expertise with little regard for how it may be evaluated by those outside their disciplines. They then present their conclusions as “truths,” which go on to be taken up by other discourses. Foucault’s focus is on analyzing how this is effected more than by who, and he links the “how” directly to the production of knowledge through surveillance. Documentation, bureaucracy, assessment, examination, registration, evaluation … all of these exercises generate “knowledge” on populations and individuals that can then be deployed to control their conduct. Thus, the production and collection of knowledge about human beings is at once the acquisition and collection of power, and is deeply linked to both truth claims and who holds the power to make them.

  • 47 Foucault dedicated an entire work to this idea, Madness and Civilization: A History of Insanity in (...)
  • 48 Smart, supra note 46 at 8.
  • 49 Ibid.

32Foucault singled out the psy-disciplines in particular as enacting a type of disciplinary power. He saw the knowledge-power-truth triad as a pervasive means of designating certain ways of being as “normal” and others as deviant.47 He argued that this disciplinary power was colonizing not only the mind, but also traditional, state-based forms of power, such as law. By this he meant that the power is shifting from the “old” forms of control to the “new,” ultimately rendering the old less relevant.48 Smart suggested that in a contest between law (what she called “the discourse of rights”) and the psy-disciplines (“the discourse of normalization”49), Foucault would argue the psy-disciplines will ultimately win out as the more pervasive and totalizing form of power.

  • 50 Ibid at 19.

33Smart, however, maintained that while the rise of the psy-disciplines and other disciplinary mechanisms may signify a shift in power, the law has by no means lost its authority or special claims to “truth.” She theorized instead that law retains its power by translating psy-discipline truths back into a legal framework and expressing them in the discourse of rights. In this way, the “old” power of law operates parallel with the rise of disciplinary power. Further, she contends that legal power, or legal “truths,” may in fact be extending further into society rather than diminishing, as Foucault’s analytics would suggest. Smart instead posits both a fluctuation where one discourse will dominate the other at differing points in time, and a symbiotic relationship between law and the psy-disciplines wherein they work in coalition.50

34This idea of a contest of powers is interesting when considering the location and impact of psy-discipline expertise in law’s dealings with women. It may well be that legal truths are succumbing to psy-discipline incursion or, conversely, as Smart suggests, that law maintains its power by re-casting psy-discipline knowledge into legal truths. True psy-legal hazards for women, however, may be less grounded in a struggle between powers than they are in Smart’s “moments of coalition.” In the section to follow, a picture of law emerges that does indeed appear to be “colonized” by psy-discipline truth claims. However, closer examination reveals benefits to both domains in reifying one another’s expertise, such that they ultimately reinforce one another’s power.

  • 51 Foucault, supra note 40 at 102.

35What has been termed “Foucauldian analytics” counsels us that to see the workings of disciplinary colonization or, alternately, to locate power, one must look to “practices” — what might be seen as the minutia of daily life. He directs us to look to “the institutions, procedures, analyses and reflections, the calculations and tactics that allow the exercise of this very specific albeit complex form of power.”51 Feminist political practice also stresses the importance of practices (or what is done versus what is said) to reveal embedded patriarchal power ribboned throughout the social world. The feminist attention to process is rooted in a recognition that subtle forms of power and control can be encoded and exercised in how we do things, which has obvious parallels to Foucault’s work. As we shall see in our discussion of the intersection of law and the psy-disciplines, observing practices changes the terms of the usual conversation about the location of “the expert” in matters of law and for survivors of sexual violence.

PART II

Law and the Psy-Disciplines: Mutually Reinforcing Propositions?

  • 52 Breggin, supra note 25 at 324.

That psychiatric abuses of women exceed the norm in society derives from the fact that its legal authority is excessive and that its orientation is power and control.
– Peter Breggin, MD52

36Law and the psy-disciplines are often described as being in an “uneasy relationship,” but a firmly entrenched one nonetheless. While theorists argue that there is tension between these “expert” arenas, the legal record makes it clear that their disagreements have rarely extended to the “problem” of women. The law and the psy-disciplines instead have much in common in terms of the historical status they have accorded women, which would follow from their common genesis in male dominance. The briefest glance at history shows that “Woman” did not acquire her inferior status when she was deemed pathological by the psy-disciplines; instead, the domain offered new language and “expert” theory to assist in authenticating existing cultural beliefs as “scientific.” The addition of “expert” psy-discourses to law generated new arguments to explain and support the already distorted legal view of women. The words of legal expert John Wigmore give us a cogent example of the reinforcing nature of the discourses:

  • 53 In Rosemary Tong, Women, Sex and the Law (Totowa, NJ: Rowman & Allanheld, 1984) at 101.

Modern psychiatrists have amply studied the behaviour of errant young girls and women coming before the court in all sorts of cases. Their psychic complexes are multifarious, distorted partly by inherent defects, partly by temporary psychological or emotional conditions. One form taken by these complexes is that of contriving false charges of sexual offenses by men… The real victim, however, too often in such cases is the innocent man… 53

37Here we see that not only does law reify the expert status of psy-disciplines by referencing their theories, but it also stands to gain from the psy-disciplines’ expert claim. Law no longer needed to rely on a belief that women are apt to lie about men in sexual assault cases; women’s mendacity could now be argued as a matter of science:

  • 54 Smart, supra note 46 at 9.

… making the claim to be a science is in fact an exercise of power because, in claiming scientificity, other knowledges are accorded less status, less value. Those knowledges which are called faith, experience, biography, and so on, are ranked as lesser knowledges. They can exercise less influence, they are disqualified.54

38Belief, as a “lesser knowledge,” has a far lower threshold for challenge than does science, and is more vulnerable to critique. The solidity of legal truth is concretized through being supported by psy-discipline “scientific fact.” The legal discourse of rights is maintained through wielding “fact” as protection for “the innocent man.”

39As noted, not only does the “expertise” of the psy-disciplines thus translate the existing legal position on women from a legal to a “scientific” one but, by invoking the study of psychiatrists as scientific support, law reciprocally reinforces the psy-disciplines as “expert” and gives them legal weight. Hence the psy-discipline claim to expertise is no longer only self-awarded; it is now made real and, importantly, expanded through its recognition in law. Thus it can be said that, far from being in contest, the psy-disciplines and law are mutually reinforcing, constitutive propositions, as the truth claims of both are benefited by invoking the other.

40While at first glance this might appear to be an example of the symbiotic relationship Smart described, I suggest that we take the analysis one step further and query whether “symbiosis” fully describes the process occurring here. The relationship is symbiotic in that it is interconnected and potentially beneficial to both domains, but it is also generative in that it serves to increase the influence of both exponentially. Thus, in light of these mutually constitutive-generative properties, I think it is appropriate to posit a third category of discourse, one that mobilizes the claims to expertise of both disciplines, and expands the scope of their associated power as they act in combination. This form of discursive and generative power can most easily be dubbed psy-legal and, as I will argue, it can be exerted through unexpected means when aimed at women survivors of violence.

Locating the Expert

41It is no simple task to locate the expert in law, as the example that opened this paper demonstrates. Claims to expertise are mobilized at all different stages of the legal process, and are encoded in the very structure of law itself as a professional discipline. Police officers, Crown attorneys, medical personnel, child protection workers, social workers, probation officers, facility staff, psy-professionals, victim/witness workers — all make expertise claims within the legal system, and that is to say nothing of lawyers and judges themselves. In a discussion about expert knowledge and the law it is reasonable to ask, “Whose knowledge are we talking about? Where? When?”

42A scan of the literature about expert knowledge and the legal system invariably turns up lengthy, academic articles about the role and admissibility of expert testimony and qualification of expert witnesses. While certainly not determinative, a snapshot view like this suggests some singularity of thought on the location and role of experts in law. While specific aspects of evidentiary rule in the use of “experts” are voluminously discussed, less apparent are the significant yet near-silent psy-discipline incursions into law, albeit in non-testimonial garb. The absence of an “expert” on the stand does not mean their authority may not be felt through all aspects of legal process. Instead, as was argued by Foucault and as is observable by feminist advocates, evidence of legal permeation by psy-discipline truth claims is best located in the micro, in the subtle ways legal power reinforces the authority of the “experts” on the lives of women without questioning or testing those claims. To illuminate these processes, we have to first locate the survivor. The “expert” will certainly be close by.

Hidden Survivors

  • 55 Statistics Canada, Canadian Centre for Justice Statistics, Sexual Assault in Canada 85F0033M No 19 (...)

43When we consider that the vast majority of survivors of sexual violence will never see the inside of a courtroom in connection with their assault, it is questionable why scholars have focused so much attention on this small space of “expert impact.” At least 90 percent of survivors of sexual violence never report the crime to police55 and, of the 10 percent who do, the vast majority will not see charges laid against the perpetrator, let alone see him come to trial. Does a very generous estimate of only 5 percent of all survivors of sexual violence ever testifying in a court proceeding suggest that the other 95 percent are not subject to psy-legal expert authority? Quite the contrary: many of these women are no less impacted by psy-legal expert claims as survivors of sexual violence. Often, they are affected significantly more.

44A survivor of violence can expect to be streamed toward psy-disciplines from the moment she discloses, be it to a friend, a family member, an authority figure, or a “professional.” The immediate, and generally well-meaning, response from the supportive person is “you should get some counselling.” It is telling that our first instinct is to refer the violence away from ourselves, the person to whom she chose to disclose, to someone more “expert” in handling these matters. That “someone” is generally understood to be a psy-discipline practitioner. This tendency suggests that the domain’s claims that sexual violence is an issue for “experts” have been fully integrated into popular belief.

45Interpersonal responses can here be extrapolated to the systemic, as this same referral process occurs throughout the myriad other spaces where women disclose male violence. Should she disclose to a doctor, she may be advised to “get some counselling,” while being simultaneously handed a prescription for a psychotropic medication. Should she disclose to a parent, the parent is informed to “get some counselling” for their child and the referrals will almost always be to psypractitioners or hospital-based programs (who employ psy-practitioners). Should she disclose to police and be believed, she may be given a contact with a victim crisis unit, a victim-witness assistance program, or a community health centre, all of which are institutionally based, apolitical, psy-grounded services. In these examples and more, the survivor will either be speaking to, or referred to, psy- or social work practitioners with varying degrees of legally bestowed authority over her. Thus it is plain that sexual violence is still directly linked with “mental health issues,” despite years of feminist work to establish that reacting to sexual violence is reasonable, not indicative of poor mental health. A survivor in contact with the legal system for any reason can expect to be pushed to psy-systems repeatedly and with increasing intensity. Whether she appears at law in the role of victim, apprehended ward of the court, accused person, or impugned mother, the referral (or compulsion) to psy-disciplinary expertise is never more than a half-step away.

  • 56 I do not mean to suggest that the majority of survivors are incarcerated; instead, that the majori (...)
  • 57 Children’s Aid Society of Eastern Ontario.
  • 58 Office of Child and Family Service Advocacy, Crossover Kids: Care to Custody (Draft Report) (Toron (...)

46So where is the survivor, when not testifying against a perpetrator? Based on my 15 years of work with young women in conflict with the law, I assert that the easiest place to find her is in jail.56 Another is in a youth group home as a ward of the Children’s Aid Society [CAS].57 If she runs away from the group home before you get there, just camp out at your local courthouse, because she’ll arrive there before long.58 You can also find her over in Family Court, fighting the apprehension of her children. She may be in the Diversion Office, getting ready to participate in a program for women charged with prostitution-related offences. Or she might be in one of our newest spaces of psy-legal power, the Drug Treatment Court or the Mental Health Court. Family Court Clinic Assessments, CAS-supervised visitation rooms, outreach centres for pregnant and parenting young women, making a claim to the Criminal Injuries Compensation Board — all of these places are sites of interaction between survivors of sexual violence and “expert” psy-legal discourses. With so many opportunities for survivors to be acted upon, a full discussion of the degree of disciplinary power expert knowledges wield over them would require a project of its own. Two common examples may nonetheless assist in demonstrating the mechanisms of these myriad practices: (1) conditions of release for criminally charged young and adult women, and (2) child protection legislation and legal compulsion of mothers.

(1) Conditions

  • 59 R v Rogers (1990), 61 CCC (3d) 481 BCCA; and R v Kieling (1991), 64 CCC (3d) 124 (Sask CA), both ov (...)

47One of the most pervasive and simultaneously puzzling psy-incursions into law is found in a release condition — be it for bail, probation, parole, or conditional sentences — in the form of an order to “take all prescribed medications.” From an advocate’s perspective it is difficult to understand how this condition finds its way into probation and bail orders with such seeming regularity, as case law would appear to prohibit it.59 Despite this, and without pretending to an explanation, advocates will tell you the condition is certainly imposed and not merely in “exceptional circumstances.” How this happens is an explanation better left to lawyers, and yet counsel who have clients released under these orders every day often appear not to have considered the question when I have put it to them. This is disheartening from a rights perspective, but entirely unsurprising from the vantage point of feminist advocates.

  • 60 System players can include Crown attorneys, defence counsel, court support workers (system-provide (...)

48The feminist advocate, along with the survivor, resides in a psy-legal world of “supposed to’s”; as in, “that’s not what’s supposed to happen.” and “the policy doesn’t say that,” “they’re supposed to let her [x],” and “you should have been allowed to [y].” Our days are filled with puzzled looks from system players60 who insist that the oppressive experience of the woman we’re supporting constitutes an exception, as in, “well, that’s not what’s supposed to happen, so something must have gone wrong there.” This suggests that the system player, while claiming to be critical of the system, ultimately does not believe it is structurally flawed. Instead, individual women have bad experiences for case-specific reasons, which are the exceptions, not the rule. Advocates, however, are familiar with the informal maxim that the only sure thing when negotiating psy-legal systems is “whatever is ‘supposed to’ happen, won’t.” This maxim appears to apply in the case of “take all prescribed medication” conditions.

49These four words, “take all prescribed medications,” stand as a damning testament to just how much expert status psy-discourses have been accorded in law. The order is not in place because the court is concerned that a woman will refuse antibiotics for an ear infection. The condition clearly refers to psychiatric medications, and it is leveraged against those who might reject medications that they believe are inappropriate, or are making them feel worse. As women are prescribed these medications at far higher rates than men, it follows that they are also disproportionately affected by the imposition of these orders.

  • 61 Even though R v Rogers, supra note 59, specifically mentioned this concern.

50In making the order it may appear that law has ceded authority to the medical/psy-disciplines completely. The law presumes that nothing inappropriate will be prescribed,61 and thus it is appropriate to force ingestion as a matter of law. These orders appear wholly beneficial to the psy-disciplines in (1) guaranteeing a consumer group for psychiatric medications; (2) ensuring a client base that has been ordered to continue attending; (3) reifying the claim to expertise of the psy-disciplines; and (4) reifying the assumption that biopsychiatry is harmless, uncontroversial, and effective.

  • 62 This is not to say that law might not enjoy the ability to monitor people at this level — if Fouca (...)

51However, as noted in the above description of the psy-legal “third discourse,” there is a reciprocal benefit to law in making this order that must also be considered. A released person is often presented in terms of their risk to the community; what is not discussed is their perceived risk to the good reputation of law. When judges allow people to remain in the community, whether awaiting trial or serving a sentence, there is always a risk that the individual may re-offend. This creates potential for high criticism of law as the public reacts strongly when persons under charge or sanction commit new crimes, particularly if someone is harmed. Media tend to sensationalize these instances and neo-conservative voices raise a hue and cry about “revolving door justice” and “slaps on the wrist.” Here law faces a dilemma, as it cannot and, more importantly, should not impose a loss of liberty if lesser alternatives are available and appropriate in the circumstances. Nor are there resources in the system to monitor every released person around the clock, and doing so would likely (and rightly) be challenged as a significant incursion into rights.62 At this juncture, support for and alliance with psy-expertise becomes invaluable to law. By imposing the “take all prescribed medications” condition, the law effectively employs what one charged person described to me as “chemical handcuffs.” The law is able to extend the reach of its surveillance and its shackles to people in the community by the act of ordering chemical alteration intended to result in greater docility and manageability. Thus, psy-disciplines offer the law the possibility of continuous control through chemical restraint that would not otherwise have been available to it. The released person has no recourse outside of argument by defence counsel at the time of the order, but I have yet to see a lawyer object to this condition, despite hearing it imposed scores of times.

  • 63 There is a related question here about the ethics of starting women on prescriptions that radicall (...)

52Even without the legally questionable “take all prescribed medications” condition, other conditions can be used to ensure the same result by less direct means. Common to most youth orders, for example, is a condition that they “be amenable to” or “follow” the rules, routines, and discipline of any residence the young woman is released to (these are very often group homes overseen by child welfare authorities). Thus, if intake psychological assessment, meeting with a residential clinician, or seeing the psychiatrist for mental health screening is routine in the group living environment, refusal to do so will amount to a breach of the woman’s release conditions. Additionally, discontinuing medications that have been prescribed can constitute a breach of the “be amenable” rule. This application is particularly problematic for adult women who are coming to residential environments from provincial detention centres, where many women are prescribed psychiatric drugs almost the instant they arrive, even for very short-term detention. The rates, the speed, and the types of medications all indicate that psy-“expertise” is being mobilized to support “institutional adjustment” by means of “managing the population through drugging.” Once released, however, the women now have a prescription that must be maintained, regardless of whether they have the money or the inclination to do so.63 A worker in a downtown homeless shelter recently remarked to me that despite a 4:1 ratio of men’s to women’s beds, “the women’s medication cupboard is twice the size of the men’s.” She expressed frustration that more and more women were carrying these prescriptions when coming to the shelter from a detention centre, shelter staff were being made responsible for ensuring they took them every day, and some had even been told to alert probation officers if women “fail to comply.”

53If these two conditions are not enough to ensure the deep embedding of psy-legal power over the survivor, the condition to “attend for such assessment, treatment or counselling as is directed by your (youth) worker” covers off the last of any loopholes that might allow her to avoid psy-streaming. By including a blanket condition giving probation officers the power to direct women into counselling and assessment, the law firmly reinforces the claims of psy-discipline expertise in working with women. The direction to seek counselling and assessment also becomes increasingly specialized; should she already have support as a survivor of violence, she is then told she needs to get specific counselling for “anger management.” If she is seeing two psy-professionals for those, she’ll next hear that she needs to seek an addictions counsellor to work with her on that issue, while continuing to see her family doctor to “monitor her prescriptions.” Her probation officer may then tell her they’d like her to be “assessed” for any of a wide range of “disorders,” and seek diagnosis-specific counselling in those. Should this woman have children, the same process will likely be occurring simultaneously through CAS involvement (frequently initiated as a result of having witnessed violence against their mother). As the mother is diagnosed and prescribed, so is the child, and the legally facilitated reach of the psy-disciplines extends still further through generations. Women caught up in this way commonly end up with tangled, multi-layered levels of “workers” in their lives, all of whom are continuously suggesting more and more possibilities for what is “wrong” with them and their children. All of these interactions are copiously documented, such that the “file” on an individual woman becomes thicker and thicker. This information becomes available to probation, the courts, and facilities and residences she is sent to, and can influence sentencing decisions, residential placements, ordered treatment schemas, and fitness to parent. The women at the centre of this concentration of disciplinary surveillance are commonly survivors of violence: their experiences of violence are intrinsically linked to their current connection to the legal system, and they are being medicated and otherwise acted upon at astonishing rates. Further, the power of legal authority and the threat of sanction are wielded to tell them this psy-discipline intervention and supervision is not only expert, but in their “best interests.”

(2) Psy-legal Power, Light on the Legal

  • 64 In Ontario, child protection is governed by the Child and Family Services Act, RSO 1990, c C 11.

54A second example of mobilization of psy-legal discourses over women survivors that needs interrogation occurs through the child protection system.64 Here psy-legal claims are regularly made by extra-legal players such that women are not only subjected to exquisitely minute levels of scrutiny, they are also regularly compelled by the leverage of law without ever actually accessing a legal process. A difficulty with exposing the subtle means by which psy-legal discourses act on women lies in the fact that their most coercive power is often mobilized in extra-legal settings, delivered by collaterals who would be technically identified as non-legal system actors. As such, the very fact that these practices do occur fails to find its way into documentation, as they would not likely survive court challenges or review by competent counsel. Here, again, the view from feminist political practice can assist us, in that advocates are often witness to otherwise invisible extra-legal practices that reveal the most penetrating implications of the legal adoption of psy-discipline expertise claims, and their power to compel survivors to acquiesce to disordered identities.

  • 65 Ontario Child Welfare Eligibility Spectrum, Ontario Association of Children’s Aid Societies, 2000 (...)
  • 66 M Glasser et al, “Cycle of Child Sexual Abuse: Links Between Being a Victim and Becoming a Perpetr (...)
  • 67 Glasser et al, ibid.
  • 68 While the Eligibility Spectrum counsels caution in its references to abuse histories, women freque (...)

55Contextually, it is important to note that being a survivor of abuse, or having been a child “in care” oneself, are both considered risk factors to children in the Ontario Child Welfare Eligibility Spectrum.65 This is a disturbing indication of how the psy-legal gaze can pathologize women survivors who dare to disclose the violence against them, as children or later in life. Those who would assert that the psy-disciplines have abandoned their victim-blaming lineage need only consider the implications of constructing survivors as “risky.” Although popular mythology teaches that being sexually abused as a child increases an individual’s risk of sexually abusing children as an adult, there are numerous data to suggest that this correlation for males is low, and that it has not been reliably demonstrated for women.66 In other words, although there may be some truth to “cycle of violence” theories, particularly for physically abused men, studies do not support the theory that women who were sexually abused as children are at higher risk to sexually abuse children as adults.67 Despite this, child protection risk scales and individual protection workers68 continue to consider a woman’s own history of abuse when assessing her potential risk to her children. When we consider the vast numbers of women who have experienced childhood sexual abuse and gone on to become parents, one might be forgiven for thinking that it is a miracle that there are any healthy, unharmed children on the planet at all. Mothers would seem to be a very risky bunch indeed.

56We see here, as elsewhere, the pervasive influence of psy-disciplines in “disordering” survivors and constituting them as mentally unstable. Child protection agencies might counter that they consider a parental history of abuse a generalized risk factor to be considered in intervention, but maintain that they are not arguing there is a specific risk of mothers being sexually abusive themselves. Even making allowances for possible explanation, it remains highly questionable that general risk to children is demonstrably higher among women survivors than for others with a wide range of negative childhood experiences that could influence parenting. Regardless, under these “expert” schemas, the sexually abused woman in particular is cast as potentially dangerous. This “risk” then supports the use of heightened surveillance, scrutiny, and directive authority over women who have disclosed.

57There is irony in the fact that women who have broken silence about abuse, have sought support or assistance, or have been transparent with child protection authorities about their histories are, as a result, cast as a greater risk than women who have chosen to do none of these things. This double bind often exists for survivors in contact with psy-legal power and is startlingly reminiscent of the very message carried by the abuse itself. Should she disclose, she risks the heavy-handed intervention of the law as compulsion; should she stay silent, she doesn’t. It is hard not to see “don’t tell anyone” as the end result. Feminist sexual assault centres recognized this practice of effectively punishing women for disclosing early in their inception, and this was the genesis of the very strict confidentiality policies most centres adopted. These “no records” policies were designed to create safe space for women to disclose abuse without incurring the type of stigma-based consequences we see encoded in child protection risk assessments.

  • 69 New conditions are regularly added as soon as old ones are completed; some women we have worked wi (...)
  • 70 Legal Aid in Ontario will generally only become available after her child is apprehended.
  • 71 Note that the assumption always begins with the notion that there is a diagnosis.

58Psy-legal authority, in this case wielded by child protection workers, mobilizes to act on the identified survivor by writing a prescription of what she must do in order for child protection to end supervision and close her file.69 Each direction is backed by the threat of the legal authority to apprehend her child. Consider, for example, the young mother who is told by a child protection worker that she must take psychiatric medications or her child may be apprehended. Even if the woman does not agree with bio-psychiatric truth claims, or the specific diagnosis (which, for young, poor mothers, are frequently made by family doctors during the course of visits scheduled for other purposes), she is likely to see little option but to comply. She generally has no access to legal representation70 and, even if she did, psy-discourses have been accorded such unchallenged expert status at law that many judges either do not question their validity, or are happy to cede the authority to a “qualified professional.” Challenging this use of psy-legal power might actually have the opposite effect of enmeshing the survivor still further in disciplinary power. The predictable next step may occur, whereby she is ordered back to psy-disciplines for psychological testing and assessment to ensure an “appropriate diagnosis.”71 The circularity is dizzying.

59In this example, we see how psy-legal power is leveraged against survivors by what are traditionally seen as non-legal players in extra-legal environments. The child protection worker does so out of what she perceives to be benevolent intentions, and with two likely justifications: (1) her own training is grounded in psy-discipline truth claims about both survivors of violence and the necessity and benefit of psy-interventions; and (2) her mandate is to work for “the best interests of the child,” not the mother. Any concerns about possible rights incursions for mothers, when weighed against the possibility that a child may be endangered, are easily forgotten or overlooked. For the targeted mother, the mere idea that her child may be removed will usually ensure compliance with psy-discipline regimes.

  • 72 Physical abuse usually means that a young woman has also experienced sexual abuse, as she has no p (...)
  • 73 It is relevant to note that we see these practices aimed almost entirely at young, poor mothers. I (...)

60This use of psy-legal power is not limited to psychiatric medications. Young, poor women in contact with child protection are regularly told to attend counselling, to sign consents to allow the child protection worker to speak to counsellors and doctors, to attend programs, to enroll their children in programs, and to accept assessment and diagnosis of their children. This psy-legal authority is extended even so far as women’s sexual autonomy if they have any history of abusive relationships. Young women who have been physically abused72 are regularly told they must disclose the identities of any new men in their lives, sexual partners or otherwise, to child protection for screening. It is common in our work with pregnant and parenting young women to learn that they have been ordered not to have any men in their homes whatsoever. Thus, an entire group of women (mothers) may be subject to a level of gendered sexual policing most people believe no longer exists in Canada.73

  • 74 Child and Family Services Act, supra note 64 at s 37.2.
  • 75 Including closed young offender and probationary records.
  • 76 These are the names of two groups the YWAR Program has facilitated with pregnant and parenting tee (...)
  • 77 Trocmé Rivers et al, “Reporting and Beyond: Current Trends in Child Abuse and Neglect Call for Bro (...)

61These directives are grounded in the Child and Family Services Act definition of a “child in need of protection” as one exposed to “a risk that the child is likely to suffer emotional harm.”74 The perceived harm here is that the child may witness violence, as the woman has been in abusive relationships. Thus she is constituted as a possible risk in that she might “fail to act” to protect her child from witnessing male violence against her. Lest we make any mistake as to who is being responsibilized un-der this legislation, it must be pointed out that the child protection file is opened under the mother’s — not the abusive male’s — name. Interviews and assessments are conducted with her, and she is made to agree to a “plan of service” that often requires her to sign blanket consents for CAS access to her medical, social, legal,75 financial, and counselling information. She is often the parent ordered to take “programs” such as Healthy Relationships, Understanding Abuse,76 and parenting classes. The professionals who account for 90 percent of reports in Ontario domestic violence investigations77 are the same individuals abused women have turned to for assistance, medical attention, counselling, or social supports. Thus, the people society continuously insists are available to support the abused woman have become a policing arm of the law, such that turning to them means the woman will be constituted as a potential risk to her children.

62It should be underscored again that most, if not all of the above, occurs outside of courtrooms and outside of any legal process or representation whatsoever, although all of it is carried out using the authority of law. Thus we see how psy-disciplinary power has been invested with legal authority, with no actual legal accountability for what is done with it. While it is legally questionable whether child protection has the authority to order women to take medication or to sever most contact with men under threat of child apprehension, these dictums are often issued verbally in spaces not generally considered “legal,” and as such remain invisible from the very authority used to leverage them.

  • 78 Often referred to simply as “the FCC”, these are court-ordered Parenting Capacity Assessments (PCA (...)
  • 79 Personal communication.

63The law does enter, however, should a woman’s children eventually be apprehended under the “failure to protect” rule, but this often only activates greater psy-discipline authority. In order to fight permanent loss of custody, the mother will likely undergo what is known as a Family Court Clinic [FCC] Assessment78 — a process conducted by a psychiatrist and one or more social workers — in which a battery of psychological tests are conducted on the woman; her childhood history is documented (including experiences of physical or sexual abuse); reports from collaterals, including child protection opinions, are collected; her behaviour and attitude toward the interviewer are meticulously reported; and her interactions with her now-separated children are observed in a supervised setting. A completed FCC will usually make recommendations about whether a woman’s children should be returned home or, if removed, whether she should be allowed any future access to them. These recommendations are then tendered for judicial consideration in wardship hearings. FCC opinions are difficult to challenge, as there is usually only the psychiatrist’s written record as to the substance of the discussions to rely on, and his/her subjective interpretation of their meaning. Not surprisingly, these frequently differ significantly from the mother’s recollection and interpretation of events. While she may be able to relate her experience as part of the hearing, it is well known to defence counsel and advocates that her interpretation will rarely win out over that of “the expert.” One long-time defence counsel shared that she had never seen a judge rule against “a bad FCC,” and there is little counsel can do with them, as the psy-discipline opinions are treated as neutral and unassailable.79 While anecdotal, I can relate that in over a decade of work with young, poor women undergoing these assessments, I have yet to see one come out in a woman’s favour. In the informal networks of young, impoverished single mothers fighting to parent their children, these assessments are widely identified as something to be avoided.

Summary

64The notion of a third discourse posits that not only is the power of psy-disciplines expanded, but so, too, is the power of law. The child protection example demonstrates the former quite plainly, in that the implications for psy-disciplinary power are vast. But how is the power of law expanded through this alliance? Quite simply, the increasing pressures on legal systems to adjudicate what were once seen as private problems have not been embraced by law (as illustrated by either reluctance or ineptitude in prosecuting violence against women), with many lawyers openly espousing their hatred of “these kinds of cases.” By entering into a partnership with psy-discipline experts, formal law has little to do but empower them to go forth and manage the messiness, with the bulk of legally extended authority taking place outside of the much more orderly courtroom. In this way, law is able to extend its regulatory power directly into the daily lives and behaviours of the citizenry, but the courts rarely have to process anything but the epilogue.

65These examples demonstrate that psy-legal expertise claims about women can be encoded in legislation, mobilized through surveillance, and wielded both in and out of what is traditionally seen as legal space by both legal and psy-discipline collaterals. The expert stature the disciplines are accorded through law reinforces an otherwise self-awarded claim to expertise, and thus further solidifies the public perception of their knowledges as “truths.” While it may appear initially that law has ceded power to psy-disciplines, instead, through the process of accepting and thus reifying their expert authority, law commensurately expands its own power. It does so first by concretizing its existing legal expertise by investing it with the “science” of psy-disciplines; next by employing them to oversee and regulate the population (and women’s behaviour, in particular) in ways that law, on its own, could not; and finally, by utilizing those expert opinions to claim its own expert ability to rule on matters that it has historically preferred to avoid as the “private” domain of the family. This buttressed authority stretches even to deciding which women are permitted to mother.

PART III

The VAW Movement: The Slippery Slope of the Quest for Recognition

  • 80 Quoted in Irit Shimrat, Call Me Crazy: Stories from the Mad Movement (Vancouver: Press Gang, 1997) (...)

One of the difficulties, I think, is that there’s a large part of the movement that wants to look respectable. And if that’s what you want, you tend to have a lot of trouble knowing when you’re being co-opted. And the hard-core, real stuff can fall by the wayside. Social movements have always needed to say what to a lot of people would be unspeakable. When we stop being able to say those things, we’re no longer at the cutting edge of anything. We’ve been bought and sold.
– Bonnie Burstow80

66What have been the impacts of these expert knowledges? For a beleaguered women’s movement that first saw the psy-disciplines tell women they were pathological and then saw the law tell them that psy-disciplines were the experts, these discourses have wrought deep changes in once-politicized feminist practices. Not unlike the psy-discipline cycle from biological, to psychological, and back to biological explanations of women’s disordered natures, the sexual assault centre, once a powerful site in the larger field of the fight for women’s equality, appears to be charting a circular path back, requiring us to relearn old lessons.

  • 81 Both in the feminist and the anti-psychiatry movements.

67At one time, the words “women are the experts in their own lives” held deep meaning in the VAW movement. This was a call for resistance: resisting medicalization, resisting damaging expertise claims, resisting silencing survivors, and resisting allowing male “professionals” to continue to describe and define women’s reality in their terms. In the preceding two sections, pictures emerged of both the psy-disciplines and the law, tracing how they have wielded, and wedded, claims to expertise to create and maintain social fictions about women survivors of sexual violence. This is not the first time that these stories have been told, as seen in the vast literature thoroughly documenting both histories far more comprehensively than can be achieved here. The critical scholarship so broadly available today grew from the voices of survivors of pathologization81 who formed their own movements, their own organizations, their own support networks, and their own expertise in the face of totalizing claims that would have forever had them categorized and managed as disordered persons.

68Feminist sexual assault centres (SACs) were spaces where survivors came together and politicized to name male violence and reject the “experts” who said they were mentally ill for having experienced it (or, more precisely, for having disclosed it). Instead, survivors began to identify women’s inequality as the structural support for violence that they now knew as a manifestation of patriarchal power and control. No more did survivors want to hear “there, there, dear, go home and take a hot bath, you’ll feel better,” the equivalent of what they were told by credentialed “experts” when not being accused of fabricating or causing the violence. Instead, survivors built organizations that would work politically to end women’s inequality in both the larger society and in the practice of supporting survivors of male violence. This work meant advocating for both individual women facing oppressive systems and expertise claims, and on a broader political level challenging government, institutions, structures, and knowledges that re-inscribed women’s inequality into the fabric of daily life.

69From this movement, new forms of expert knowledge were also born. Survivors taught themselves, and each other, what they needed to be supported and move forward, and identified what had caused them such serious harm in the psy-disciplines. They recognized how their own knowledge had been devalued in the face of credentials and expertise claims that knew little about their lives or experiences. An ethics of feminist support began to take shape, one that named the importance of confidentiality, survivor-direction, boundaries, non-judgmental listening, believing, validation, and social context. SACs were adamant in rejecting the psy-medical model of labelling, individualizing, and pathologizing, and instead richly valued experiential and collective expertise. Having learned from sexual violence and the abuses of the legal and psy-disciplines, a feminist support model highlighted power dynamics and paid critical attention to their equalization. Organizational structure too was therefore non-hierarchical, and consensus-based. Accountability was critical — women who had never seen any accountability taken by their abusers, or a society that refused to believe them or acknowledge structural inequality, could not be similarly denying other women’s experience. Being accountable for one’s own actions, oppressive behaviours, and use or misuse of power was the personal responsibility of every worker, and the larger commitment of every centre.

70Feminism, as a political movement, also had expertise to build. Like every other social movement, feminism generated its own internal hierarchies of power, with the same assumed entitlements and denials. White, heterosexual, middle-class, able-bodied women who had not had to challenge their own privilege at first rebuilt the same “othering” and marginalizing structures into their movement and organizations that men had built against women in the larger social sphere. Women who were marginalized in the broader society were now doubly so as they found themselves silenced within a movement claiming, yet failing, to speak for them. Thus the feminist analytics of power had to deepen and grow, to understand the internalization, maintenance, and replication of hierarchies of privilege and domination in a system of linked oppressions ribboned through both our internal and external worlds. Feminism represented the fight for women’s equality, but it matured to understand that women’s oppression was inseparable from all forms of oppression: the kitchen table movement was actually a global one. All of this and more came to make up the body of expert knowledge on which feminist sexual assault centres built their foundations.

  • 82 Apart from external social manageability of patients.
  • 83 Sarah E Ullman & Stephanie M Townsend, “Barriers to Working with Sexual Assault Survivors: A Quali (...)

71This expert knowledge, finally, looked like it might be one that could meet and demonstrate the expectations of expertise. If the core components of expertise are being very skilled and knowledgeable about a particular subject or type of work, then women’s feedback certainly supported feminist political practice. While the “expertise” of the psy-disciplines does not concern itself with outcomes,82 and thus positive “performance” is not a requirement for their expert status, the feminist sexual assault centre’s emphasis on accountability has always placed the woman’s experience of her support in the foreground. In studies designed to determine what women consider “most helpful” in healing from sexual violence, the support of feminist sexual assault centres and their advocates continues to be identified first by survivors.83 These data certainly reflect what is regularly reported to SAC workers, and are consistent with internal survivor evaluations that highlight the importance of supporting women’s expertise, maintaining protection from record keeping, and rejecting diagnostic or mental-health labelling.

Enter the Credentialed

72However, what at first looked like it might be the undoing of the age of the experts instead took unexpected turns. As newly emboldened women began to speak out about sexual violence and, in particular, about the incest that psy-expertise had previously claimed was fantasy, the psy-disciplines took a new approach. They would no longer deny the existence of childhood sexual abuse outright; instead they simply named themselves the experts in it while simultaneously erasing the role of inequality. As Louise Armstrong, author of Kiss Daddy Goodnight, one of the first feminist works to expose incest, writes:

  • 84 Louise Armstrong, “Incest: A Feminist Core Issue that Needs Repoliticizing” (Dec 2003) Arte Sana, (...)

… they fed on us. They took ownership of our stories. They dismissed our politics. They ignored our goal. And they re-cast the entire issue in their professionalized language. For good measure, they also borrowed our lan guage — words like empowerment, courage, change.
What happened was that virtually overnight — out of the vast pool of ignorance and darkness that had existed on the issue five minutes earlier — suddenly, amazingly, knowledge appeared. Suddenly — when we started talking about holding normal men who were normal fathers accountable — there were experts. A million experts, a billion experts — it was a great miracle — an act of divine intervention. (or an infestation, depending on your view.)84

  • 85 Ibid.
  • 86 Jeffrey J Olson, “Social Work’s Professional and Social Justice Projects” (2007) 18 J Progressive (...)
  • 87 “The women’s anti-violence movement was born from the philosophy that institutionally-based educat (...)

73Once again, psy-discipline voices geared up to bring women’s experience, and now women’s organizations, “under the domain of their expertise.”85 They moved to dominate the discourse, and along with them, a newly professionalized and legitimized social work jumped into the fray.86 Against these voices, feminist sexual assault centres continued to amass women’s knowledge, building a critical literature of the psy-discipline and legal system collusion in violence against women. Sexual assault centre workers went to universities and began to write theses about sexual violence and feminist politics. Some stayed and undertook the work of trying to change an academy that had also invisiblized male dominance and male violence, creating new controversy for a still-fledgling women’s movement that critiqued institutionally based education.87

  • 88 Shana L Maier, “Are Rape Crisis Centers Feminist Organizations?” (2008) 3 Fem Crim 83–4.

74As the feminist literature grew, so did the work of psy-disciplines. Further, violence against women was “mainstreamed” as an issue. Political feminist voices found themselves more and more marginalized, as some centres began to strive for legitimacy by remaking themselves in the image of the very disciplines they formed to resist. Many long-time political workers left, or were pushed out on the issue of “credentials,” to be replaced by degree holders who were more amenable to hierarchical structures and uncritical collaboration with institutions whose oppressive practices early political feminists worked to expose.88 Feminist voices challenging the psy-disciplines began to subside, and political feminists watched, dismayed, as psy-disciplines began to gain more credibility than ever before. Troublingly, instead of the once-critical and deeply analytical grassroots response of feminist political practice, more and more sexual assault centres were now racing to “keep up,” to prove they could hold the same impugned credentials that had been used to silence and discredit women speaking out about sexual violence.

That Was Then, This Is Now (Redux)

  • 89 Mandy Bonisteel & Linda Green, “Implications of the Shrinking Space for Feminist Anti-Violence Adv (...)
  • 90 Maier, supra note 88 at 90.

75Given that the most clear-headed critiques of psy-discipline knowledge and practices once came from the VAW movement, it is more than a little baffling that the same movement today is in a race to become more like them. In what appears to be a bid to win the contest of “experts” with psy- and institutionally based services, many of today’s SACs have attached credibility to being perceived as “every bit as professional” as government-created apolitical victim-service models. This shift has had nothing to do with ethical, competent, and accountable practice. It has instead meant hiring only university-educated women, restructuring collectives to board models, and implementing management, performance, and evaluation practices originally designed to maximize capital outputs of business or industry,89 not human needs. Many SACs have removed references to feminism or gender-based violence from their mission statements,90 and have ceased to employ a political, equality-seeking analysis, defining themselves instead as “service providers.” Perhaps most disturbing has been the overwhelming erosion of confidentiality, once the keystone of feminist political practice and the seat of its expert knowledge in supporting survivors. If Foucault’s disciplinary mechanisms are the colonization of the mind, the technologies of surveillance have certainly become the colonization of a women’s movement now uncritically engaging in “knowledge collection” on an unprecedented scale. Assessments, intake checklists, case noting, type-of-abuse statistics, contact-frequency tracking, demographic information, and record-keeping of all kinds have now found their way into the once sacrosanct safe-space of feminist centres. These tools of categorizing and managing survivors as opposed to perpetrators were the very ones employed by psy-disciplines that led to such peril in disclosure. As evidenced by the psy-legal mobilization of this documentation outlined in the last section, the dangers associated with disclosures and record-keeping are perhaps more profound now than ever before.

  • 91 Particularly in charitable status advocacy restrictions.
  • 92 See Bonisteel & Green, supra note 89, for a comprehensive overview of the mechanisms of this press (...)
  • 93 See Nick Totten, “The Baby and the Bathwater: ‘Professionalisation’ in Psychotherapy and Counselli (...)

76Numerous commentators have linked these changes to centres’ charitable status, acceptance of government funding, and associated regulatory requirements and reporting mechanisms. There is some validity to this91 as government has maintained a steady depoliticizing pressure on women’s organizations,92 and taken an active role in forcing collectives to restructure into board models. Government intervention through funding does not, however, serve as a full explanation. SACs were once adamant about taking an active and equal role in these funding agreements, revising incorrect assumptions about what activities were necessary, what reporting requirements were appropriate, and what outcomes could be expected. Centres were often proactive in critiquing contracts and grant terms, requiring that they be reworked to acknowledge the structural inequalities, the autonomy of centres, and the expert direction of survivors themselves. Thus the initial slide into depoliticization, while likely impacted by funding, cannot be fully attributed to it. Despite this, it is common today to see centres structuring their priorities and activities around funder requirements and, worse, believing they must engage in practices that feminist expert knowledge long ago identified as damaging to survivors out of fear of “getting in trouble with the funders.” The extensive documenting of survivors outlined above is only one of these practices, many of which are often misleadingly shrouded in cloaks of benevolence as being for the “protection of the client.”93

  • 94 Ritual abuse survivors, particularly, found themselves diagnosed and psychiatrized at every turn u (...)

77Today’s SACs and advocates are moving progressively toward the adoption of a “triage” role, operating as frontline assessors and referrers for psy-disciplines. Some of this is likely attributable to resource scarcity, as centres are forced to cut ongoing support services to survivors, and to maintain long waiting lists. Also reflected, however, is the steady influence and increased acceptance of psy-discipline expertise, as is evidenced by SAC adoption of medicalized language, creation of “clinical” roles, and diagnostic stances with survivors. Increasingly, too, we see centres categorizing survivors into subsets, problematizing some as “less treatable” under the rubric of “mental health” othering. Where feminist expertise once recognized that women with “extreme” presentations had often experienced severe social marginalization and abuse denial94 and thus most needed the non-judgmental, non-pathologizing support of a SAC, today this is identified as reason for sending them elsewhere. The traditional psy-discipline framework of isolating issues to individual women rather than acknowledging the role of structural inequities and social messaging thus finds new life in depoliticized sexual assault centre practice. What should be warning signs of lack of capacity and flexibility in organizational analysis and practice instead become justification to structure policy and services to support the needs of only those best able to access them. Marginalized, criminalized, racialized, and disabled women, those with language and cultural barriers or addictions issues — all are pushed into the category of “difficult to serve” and are streamed out to psy-disciplines and psychopharmacology. In this way, the past rises to meet the present, as the similarities to the early exclusivity of “white, middle-class” feminist dominance are unmistakable.

78What has the sexual assault centre’s slow transformation from political organization to service deliverer meant for women survivors of violence? “Core competencies” or, more plainly put, “things you’re very good at,” have been some of the first things to fall in the face of a rapidly credentializing women’s movement. As a movement there were core things feminists knew, things learned from the experience of watching the “expert” psy-legal discourse play out on women in therapist’s offices and legal systems every day. The feminist sexual assault centre’s body of expert knowledge included methods of supporting women, theoretical underpinnings to those methods, a local and global analysis of gendered violence and linked oppressions, and a political vision for change. It is ironic that the very things that set feminist sexual assault centres apart, the skills that drew most on the expert knowledge of women, have also been among the first things sexual assault centres are preparing to abandon. A disturbing picture emerging from this analysis of expert knowledge is one of a movement that has begun to devalue its own expertise. Somewhere along the line, centres began to move away from resisting the denigrating messages of the psy- and legal disciplines, and toward an attempt to gain their recognition. Today’s landscape sees advocates taking their leadership from those same repudiated credentialed knowledges in training, the fraught arena of “best practices” and professional development, while simultaneously de-emphasizing the expertise of the survivor herself in speaking authoritatively on the subject. Most tellingly, this harkens a full-circle return to individualizing and treating the disordered survivor while abandoning a gendered power and equality analysis in the feminist frontline understanding of sexual violence.

CONCLUSION

79The psy- and legal disciplines have been reinventing their narratives to reinforce pathologizing claims about women for a long time. There is no reason to believe they will stop, but nor should they be granted more purchase, especially when there is so much more critical information available today with which to interrogate their claims to expertise. This exploration of expert-knowledge truth-claims started with some misleadingly simple questions: How has our contemporary society decided which experts are “the” experts? On what basis? What have been the impacts of that acceptance, and the attendant power that comes with it, on women survivors of violence?

80This project, in its glance at the historical underpinnings of these expert knowledges, demonstrates that the psy-discipline claim to expertise in matters involving violence against women simply cannot be convincingly supported. Historical psy-perspectives on women would be laughable and quaint in their antiquity, were it not so plain that they have not faded into the stuff of history. Instead, acceptance of psy-discipline authority has led to increased legal power over women in a system that already constructed them as disordered. The traditional collusion of the disciplines to discredit women is even more embedded today, such that the negative power of both in the lives of women has only deepened, even as their claims to expert status expand. This partnership between the psy-disciplines and the legal system has significant implications. As long as law acknowledges and supports psy-knowledge as expert and calls on it to provide not only expert opinion, but a long arm of community supervision and social control, the power of the psy-legal discourse over the minutia of survivors’ lives will only become more deeply ingrained. It is difficult for contemporary theorists and advocates to step outside what has become generally accepted “wisdom” to interrogate something so culturally embedded as psy-knowledge. Its permeation into everyday life has been so complete as to be unnoticeable, playing itself out in courtrooms, in language, on daytime television, in our homes, and in the colonized space of our minds. Despite the difficulty, interrogating these claims is exactly what I suggest we must do to resist the pull toward biological explanation and reorientation of non-biological problems. For survivors of sexual violence, so often the targets of these interventions, raising this challenge is critical.

81Without challenge, psy-disciplines are free to promote diagnosis and psychopharmacology, particularly as “treatment” for sexual violence. Law continues to be free to pathologize and disorder the survivor: on the witness stand, in the prisoner’s box, and in her fight for the right to mother her children. Both domains extend their reach, while neither faces any serious challenge to their patriarchal foundations, frameworks, or practices. Thus, fundamental change cannot be expected to occur in either. Absent an active, politicized front line women’s movement using its own expertise to resist and expose psy-legal practices, today’s survivors are more vulnerable than ever before.

  • 95 Ullman & Townsend, supra note 83 at 413.

82Of the three expert knowledges discussed here, only the expertise of the feminist movement was generated by women, and grounded in women’s experiences. Of the three, feminist expertise is the only one to have mounted any serious resistance to the archetypal Pathological Woman of the psy-legal domains, thus having demonstrable benefits for both individual women and women as a group. This is not to say that no woman has ever benefited from the support of a psy-practitioner, or that no woman accessing the legal system has ever had a positive experience. These relieving moments, however, cannot obscure the overwhelming numbers of women who have instead experienced medical, mental health, and legal interventions as sources of “secondary victimization.”95

83Yet, despite women’s positive accounting of the support and empowerment achieved through feminist political practice, this third expert knowledge of women survivors themselves is the only one steadily losing purchase. Disturbingly, the VAW movement itself appears to be relinquishing this knowledge base in favour of apolitical models mirroring many of the same problematic elements of the psy-disciplines. When over 90 percent of child protection reports in domestic violence cases are coming from the very supports women have turned to for aid, we can truly say the women’s movement has been made to turn on itself. Today’s feminist front line must once again examine its own premises and practices. If we are going to hold law to account for reifying psy-expertise and pathologizing survivors, what has to be the accountability of the women’s movement in doing so?

84Feminist legal advocates, activists, and academics are left with some critical questions. It is time to ask ourselves why we are not challenging an expert knowledge that legally compels survivors to take psychiatric drugs, or constructs them as threats to their children? Why do we so often fail to locate the intersecting impacts of expert knowledge where they are? What questions do we need to be asking and what are the dialogues we are not having? In order to move forward, it is critical that we begin to remember how to both locate and question “the experts,” not simply on a theoretical, academic level, but on the ground, in courtrooms, in our movements. For those engaging the legal system, this is a call to examine practices, to look between the lines of policy and codification to see how the unscrutinized power lent to expert claims is wreaking havoc in the lives of mostly invisible survivors. For feminist sexual assault centres, this is a call to once again rely on and defend the expert knowledge of feminist political practice, and eschew the individualizing practices of biopsychiatry and mental health disordering. The race for institutional recognition is one that cannot be won without a loss of decades of expertise built by women who have experienced sexual violence, resisted psy-discipline pathologizing, and lived under the bright microscope of the legal system. Honouring their wisdom means a return to politicization in the violence against women movement, and a return to earlier understandings of the feminist sexual assault centre as both a site of expert knowledge and of women’s resistance.

Notes

2 Jane Doe, The Story of Jane Doe: A Book About Rape (Toronto: Random House, 2003) at 259.

3 The use of the word “victim” here is deliberate, as victimization was ongoing through this process and survival was, as yet, undetermined.

4 “… an array of strategies used by defence lawyers to undermine the character and credibility of complainants so that they are unwilling to testify against the accused.” See Elizabeth Comack & Gillian Balfour, The Power to Criminalize: Violence, Inequality and the Law (Halifax: Fernwood, 2004) at 110.

5 Also VAW.

6 Another key reason for this choice was that the events described occurred publicly.

7 Sexual Assault Support Centre of Ottawa, online: <http://www.sascottawa.org>.

8 Psychiatry, psychology, psychotherapy and, less so today, psychoanalysis. Many critics (early and contemporary) include social work under the psy-discipline umbrella, particularly as it increasingly professionalizes to vie for status with the aforementioned fields. Social workers are implied in this usage in most instances in this paper.

9 See K Anders Ericsson et al, The Cambridge Handbook of Expertise and Expert Performance (Cambridge: Cambridge University Press, 2006) for a comprehensive overview of the scholarship and Evan Selinger & Robert P Crease, The Philosophy of Expertise (New York: Columbia University Press, 2006) for critiques.

10 A logical maxim attributed to William Ockham that generally states, “entities should not be multiplied unnecessarily,” or, a more recognizable variant, “the simplest explanation is usually the best.”

11 See definition, online: <http://dictionary.reference.com/browse/expert>; and Ericsson et al, supra note 9 at 3.

12 K Anders Ericsson, “An Introduction to Cambridge Handbook of Expertise and Expert Performance: Its Development, Organization and Content,” in K Anders Ericsson et al, supra note 9 at 3, 3.

13 Ibid at 4.

14 Ibid.

15 Julia Evetts, Harald S Mieg & Ulrike Felt, “Professionalization, Scientific Expertise, and Elitism: A Sociological Perspective”in K Anders Ericsson et al, supra note 9 at 105, 106, 109, 118.

16 Ericsson, supra note 12 at 4.

17 Dorothy Tennov, Psychotherapy: The Hazardous Cure (New York: Anchor Books, 1976) at 229.

18 Paula J Caplan, The Myth of Women’s Masochism (New York: New American Library, 1985) at 28.

19 Susan Brownmiller, Against Our Will: Men, Women and Rape (New York: Bantam Books, 1975) at 305; and Paula J Caplan, They Say You’re Crazy: How The World’s Most Powerful Psychiatrists Decide Who’s Normal (Reading, MA: Perseus, 1995) at 37.

20 See Barbara Ehrenreich & Deirdre English, For Her Own Good: 150 Years of the Experts’ Advice to Women (New York: Anchor Books, 1978).

21 Tennov, supra note 17 at 220–21.

22 Ibid at 220.

23 See Brownmiller, supra note 19 at 305–07; Tennov, supra note 17 at 108.

24 Caplan, supra note 18 at 30.

25 Peter Breggin, Toxic Psychiatry (New York: St Martin’s Press, 1991) at 336.

26 Two notables are sociologist Erving Goffman, and psychiatrist and academic, Thomas Szasz, who remains active today.

27 Ehrenreich & English, supra note 20 at 316.

28 Bonnie Burstow, Radical Feminist Therapy (London: Sage Publications, 1992) at ix.

29 Caplan, supra note 18 at 140.

30 See discussion in Burstow, supra note 28 at ix; and Carol Gilligan, In a Different Voice (Cambridge, MA: Harvard University Press, 1982) at 7.

31 Tennov, supra note 17 at 80–86.

32 Similar arguments claim that racist and sexist oppressions no longer exist as these groups are ostensibly “equal now” under the law.

33 Clare Shaw & Gillian Proctor, “Women at the Margins: A Critique of the Diagnosis of Borderline Personality Disorder” (2005) 15 Feminism & Psychology 483–90.

34 Caplan, supra note 19 at 91.

35 To which Caplan engagingly asks, “Do half a million American women go crazy once a month?” (ibid at 122); Caplan exhaustively documents the struggle and ultimate defeat of the opposition to this addition: ibid.

36 Selective Serotonin Reuptake Inhibitors, or anti-depressants.

37 Janet Currie, “The Marketization of Depression: The Prescribing of SSRI Antidepressants to Women” Women and Health Protection (May 2005), online: <http://www.whp-apsf.ca/en/documents/ssri.html>.

38 Breggin, supra note 25 at 164.

39 “Off-label” is the practice of prescribing drugs outside of their approved purpose and/or to groups for whom they have not been approved as safe. This is the case for nearly all psychotropic drugs given to children.

40 Shankar Vendantam, “FDA Links Anti-depressants, Youth Suicide Risk” Washington Post A01. (3 February 2004).

41 I have instead opted to remain rooted in political practice, meaning the method privileges observation and independent evaluation, supported by historical and experiential evidence. My choice of methodology is intended not only to promote accessibility while honouring feminist experiential process, but also to address the twin paradoxes raised at the outset — the paradox of employing “expert” language to critique the use of expertise to gain power, and the paradox of referring to “the experts” to speak in an authoritative voice about expertise.

42 Michel Foucault, “Governmentality” in Graham Burchell, Colin Gordon & Peter Miller, eds, The Foucault Effect: Studies in Governmentality (Chicago: University of Chicago Press, 1991) 87.

43 Michel Foucault, Discipline and Punish: The Birth of the Prison (New York: Random House, 1977) at 135, 170, 195, 73, respectively.

44 David Garland, “Review: Foucault’s ‘Discipline and Punish’ — An Exposition and Critique” (1986) 11 Am Bar Found R J 847 at 852.

45 Gary Gutting, “Michel Foucault” in Edward N Zalta, ed, The Stanford Encyclopedia of Philosophy, online: <http://plato.stanford.edu/archives/win2008/entries/foucault/>.

46 Carol Smart, Feminism and the Power of Law (New York: Routledge, 1989) at 9.

47 Foucault dedicated an entire work to this idea, Madness and Civilization: A History of Insanity in the Age of Reason (New York: Random House, 1965).

48 Smart, supra note 46 at 8.

49 Ibid.

50 Ibid at 19.

51 Foucault, supra note 40 at 102.

52 Breggin, supra note 25 at 324.

53 In Rosemary Tong, Women, Sex and the Law (Totowa, NJ: Rowman & Allanheld, 1984) at 101.

54 Smart, supra note 46 at 9.

55 Statistics Canada, Canadian Centre for Justice Statistics, Sexual Assault in Canada 85F0033M No 19 (Ottawa: Minister of Industry, 2008), online: <http://www.statcan.gc.ca/pub/85f0033m/2008019/findings-resultats/trends-tendances-eng.htm>.

56 I do not mean to suggest that the majority of survivors are incarcerated; instead, that the majority of incarcerated women are survivors. Most statistics cite rates of approximately 80 percent of incarcerated women report experiencing physical and/or sexual violence. In my own experience, a much higher percentage of young women in custodial environments describe experiences of sexual abuse and/or assault, with percentages closer to the high nineties for sexual violence alone. While anecdotal, frontline workers across service organizations report similar rates to me. First-hand survivors’ accounts of their interactions with researchers suggest to me that academic methodology creates a barrier to accurate information about the true rate of sexual violence experiences among incarcerated women.

57 Children’s Aid Society of Eastern Ontario.

58 Office of Child and Family Service Advocacy, Crossover Kids: Care to Custody (Draft Report) (Toronto: Office of the Provincial Advocate for Children and Youth, 2003), online: <http://provincialadvocate.on.ca/main/en/publications/publications.cfm> at 1.

59 R v Rogers (1990), 61 CCC (3d) 481 BCCA; and R v Kieling (1991), 64 CCC (3d) 124 (Sask CA), both overturned forced medication probation conditions, with Rogers finding they are a violation of the Charter s 7 right to life, liberty, and security of the person. Rogers qualifies this “where there is a finding of incompetence or an exception recognized in law.”

60 System players can include Crown attorneys, defence counsel, court support workers (system-provided), probation officers, social workers, so-called “clinical” staff, diversion-program staff, police officers, mandated treatment staff, and more.

61 Even though R v Rogers, supra note 59, specifically mentioned this concern.

62 This is not to say that law might not enjoy the ability to monitor people at this level — if Foucault’s theories of surveillance hold true, and if crime-monitoring cameras and other technological public surveillance innovations are any indication, it is arguable that the legal sphere would extend this power as far as it were able.

63 There is a related question here about the ethics of starting women on prescriptions that radically upset brain chemistry and have strong cognitive and physical discontinuation effects, knowing (1) they will be released in a few days or weeks time with no resources to maintain the prescription; (2) they may be using other chemicals on the street that could have dangerous interactions; and (3) coming off these drugs has been described by women as similar to “going crazy,” yet there is no accountability to possible withdrawal consequences, including rearrest or new charges.

64 In Ontario, child protection is governed by the Child and Family Services Act, RSO 1990, c C 11.

65 Ontario Child Welfare Eligibility Spectrum, Ontario Association of Children’s Aid Societies, 2000 (revised 2006), p 10 and s 5, scales 3 and 4, online: <http://www.oacas.org/pubs/oacas/eligibility/>.

66 M Glasser et al, “Cycle of Child Sexual Abuse: Links Between Being a Victim and Becoming a Perpetrator” (2001) 179 Brit J Psychiatry 493; US Department of Justice, Office of Justice Programs, “Victims of Childhood Sexual Abuse: Later Criminal Consequences” (NIJ Research in Brief Series) NCJ 151525 (National Criminal Justice Reference Service, 1995), online: <http://www.ncjrs.gov/>.

67 Glasser et al, ibid.

68 While the Eligibility Spectrum counsels caution in its references to abuse histories, women frequently report being directly informed by workers that they are being supervised and/or mandated to complete treatment schemas due to their own experiences of abuse.

69 New conditions are regularly added as soon as old ones are completed; some women we have worked with having ongoing, biweekly child protection supervision in all aspects of their lives for as long as eight years. These restrictions are imposed, despite the lack of any court order, hearing, or legal finding that she has done anything wrong.

70 Legal Aid in Ontario will generally only become available after her child is apprehended.

71 Note that the assumption always begins with the notion that there is a diagnosis.

72 Physical abuse usually means that a young woman has also experienced sexual abuse, as she has no power to give or withdraw consent with respect to someone she is afraid of.

73 It is relevant to note that we see these practices aimed almost entirely at young, poor mothers. In our experience these same conditions are not routinely placed on white, middle-class mothers when CAS attends after a domestic violence report.

74 Child and Family Services Act, supra note 64 at s 37.2.

75 Including closed young offender and probationary records.

76 These are the names of two groups the YWAR Program has facilitated with pregnant and parenting teen women for the past nine years. Fully 95 percent of the young women participating are initially present due to CAS concerns that they may “fail to protect” their children as a result of their “unhealthy relationships.” The bulk of child apprehensions from group members are linked to what CAS deems a “failure to protect” the child from a male whose behaviour they suspect may be abusive.

77 Trocmé Rivers et al, “Reporting and Beyond: Current Trends in Child Abuse and Neglect Call for Broader Reforms” (November 2002) Voices for Children Report, online: <http://www.voicesforchildren.ca/report-Nov2002-1.htm>.

78 Often referred to simply as “the FCC”, these are court-ordered Parenting Capacity Assessments (PCA’s) conducted by designated, usually institutionally based, mental health agencies.

79 Personal communication.

80 Quoted in Irit Shimrat, Call Me Crazy: Stories from the Mad Movement (Vancouver: Press Gang, 1997) 41 at 43.

81 Both in the feminist and the anti-psychiatry movements.

82 Apart from external social manageability of patients.

83 Sarah E Ullman & Stephanie M Townsend, “Barriers to Working with Sexual Assault Survivors: A Qualitative Study of Rape Crisis Centre Workers” (2007) 13 Violence Against Women 412 at 412–13; see also Rebecca Campbell, “Rape Survivors’ Experiences With the Legal and Medical Systems: Do Rape Advocates Make a Difference?” (2006) 12 Violence Against Women 30 at 32, 40.

84 Louise Armstrong, “Incest: A Feminist Core Issue that Needs Repoliticizing” (Dec 2003) Arte Sana, online: <http://www.arte-sana.com/articles/incest_feminist_core.htm>. See also Louise Armstrong, Kiss Daddy Goodnight: A Speak-Out on Incest (New York: Pocket Books, 1978).

85 Ibid.

86 Jeffrey J Olson, “Social Work’s Professional and Social Justice Projects” (2007) 18 J Progressive Human Services 52.

87 “The women’s anti-violence movement was born from the philosophy that institutionally-based education, especially in the fields of social work, psychology and medicine, serves to encode the social, political and institutional conditions that maintain women’s subordinate social and economic position. The idea that credentials are required to advocate for and provide services to women who have experienced violence is antithetical to the meaning of feminism.” Anna Willats, Mandy Bonisteel & Marilyn McLean, “The Struggle to Maintain Grassroots Feminist Responses to Male Violence” (Sept/Oct 2005) 53 New Socialist Magazine 16 at 17, online: <http://www.newsocialist.org/attachments/123_NewSocialist-Issue53.pdf>.

88 Shana L Maier, “Are Rape Crisis Centers Feminist Organizations?” (2008) 3 Fem Crim 83–4.

89 Mandy Bonisteel & Linda Green, “Implications of the Shrinking Space for Feminist Anti-Violence Advocacy” presented at the 2005 Canadian Social Welfare Policy Conference, Forging Social Futures (Fredericton, New Brunswick) at 2 [unpublished], online: www.crvawc.ca/documents/ShrinkingFeministSpace_AntiViolenceAdvocacy_OCT2005.pdf.

90 Maier, supra note 88 at 90.

91 Particularly in charitable status advocacy restrictions.

92 See Bonisteel & Green, supra note 89, for a comprehensive overview of the mechanisms of this pressure.

93 See Nick Totten, “The Baby and the Bathwater: ‘Professionalisation’ in Psychotherapy and Counselling” (1999) 27 Brit J Guidance and Counselling 320, for a refutation of the “best interests” argument.

94 Ritual abuse survivors, particularly, found themselves diagnosed and psychiatrized at every turn until SACs created space to illuminate and expose these experiences to a disbelieving public.

95 Ullman & Townsend, supra note 83 at 413.

Auteur

Has been a member of the Sexual Assault Support Centre of Ottawa Collective since 1997, and is the founder and full-time coordinator of the Young Women at Risk (YWAR) Program, a support, outreach, and advocacy program for marginalized and criminalized young women. She provides over 1000 hours of direct support to young women survivors of violence and state intervention annually, and provides organizational training and education to regional agencies and to those working with youth in conflict with the law. She is a regular guest lecturer on questions of access to justice, sexual violence, and women’s incarceration, and she writes on issues of criminalization and psychiatrization of women and girl survivors. She has served on regional, provincial, and national advisory committees for service, research, and political/legal policy reform in matters of violence against women

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