UTUCR Volume 2 | 2014-2015

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M MZ 6ZWU PM 5L WZ 9V 3P MNDear valued readers, It is with great pride that we introduce the second volume of the University ofToronto Undergraduate Criminology Review (UTUCR). The UTUCR is an academic journalcreated annually by a group of students in the Criminology and Sociolegal Studies programunder the supervision of Faculty Advisors. The UTUCR was founded with the intent ofproviding undergraduate students an avenue to publish high quality academic work and tofoster intellectual debate on criminological issues, while simultaneously encouragingstudent participation outside the classroom. It is our hope that this volume fulfills thesegoals. This collective project could not have been achieved without the dedication andassistance from many individuals who have shown unwavering support. Our sincerestgratitude extends to Professors Anthony Doob, Kelly Hannah-Moffat, Mariana Valverde,William Watson, and Maria Jung, for their enthusiasm and guidance at all steps of thepublication process, as well as their devoted assistance in reviewing the essays. Mywholehearted appreciation also extends to every student on the editorial team. Thecommitment and earnestness of each member on the team in fulfilling their roles cannot beoverstated. It is enlivening to work alongside a group of peers, both journal members andauthors, who share the same academic values and vision. The UTUCR received many highquality submissions from students in all years of study as well as from different Canadianuniversities. We accord our gratefulness to these dedicated individuals and hope thatstudents continue to take interest in the Review in the years to come. I would also like toextend a personal thank you to Kevin Kim, the Editor-in-Chief from the inaugural volume ofthe UTUCR, for his continued support. As a member of the UTUCR’s editorial team for both volumes of the publication, Ihave been very fortunate to experience its progression from a seedling to a fully-fledgedproject that will hopefully thrive in the many years to come. The first two volumes havebeen an extensive learning experience about how academic journals are created andmanaged, and how to create a robust project that can prosper into the future. Taking partin this has been a rewarding experience, both personally and academically. My academicjourney allows me to return to the Centre for Criminology and Sociolegal Studies in mypursuit of graduate studies next year, where I will continue to fortify my passion for this fieldof study. As we pass the torch onto the next group of our peers who will oversee theUTUCR, I look forward to bearing witness to the enthusiasm and dedication under whichthe Review was originally founded. For any inquiries, comments, or requests to attain physical copies of the journal,please contact us at [email protected] warm regards,Daiana KostovaEditor-in-Chief 2014-2015University of Toronto Undergraduate Criminology Review &&

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Aboriginal AccusedPersons Can AchieveJustice in the Absence ofAboriginal Jurors Connor AnearABSTRACT This paper seeks to answer the question of whether just outcomes canbe achieved for an Aboriginal accused person when that person elects to betried by jury and there are no Aboriginal people on that jury. It will be arguedthat while there is a widespread issue of under-representation of Aboriginalpeople on jury rolls that needs to be addressed and that while many accusedAboriginals would be better served in non-traditional criminal justice settings,in the event that an Aboriginal accused person is tried by a jury without anyAboriginal members, a just outcome can still be achieved for that person. Thepaper begins by reviewing the process of creating juries and the relevantCharter provisions. Next, it explores the issue of under-representation ofAboriginal persons on jury rolls in Canada and provides recommendations onhow to solve this. After this, Aboriginal theories of the mind, the history ofAboriginal peoples in Canada, and their relationship with the Canadian justicesystem are examined. Finally, other solutions to the issue, such as encouragingthe use of expert testimony regarding Aboriginal issues at trial and accountingfor explicit and implicit racial bias, while stillensuring jury representativeness, arediscussed. The paperconcludes that it is possiblefor Aboriginal accusedpersons to achieve justicein the absence ofAboriginal jurors, butthat certain changesmust be made inorder to best facilitatethis outcome. Image Source: Wolsak, J. <www.cbc.ca>&/&

Introduction The Supreme Court of Canada will make a ruling in an upcoming sitting that willdetermine what a representative jury entails and what provincial governments must do toensure that Aboriginal people are included on jury rolls. In R. v. Kokopenace (2013), the Courtwill decide whether a mistrial should be declared because the jury roll from which the trial’sjurors were selected did not include enough on-reserve Aboriginal people due to theprocesses used to create it. Kokopenace, the accused, argued that this violated his Charterrights to an impartial trial by jury and to equality under the law. He is Aboriginal, yet his jurydid not include any Aboriginal people. This case thus raises the question of whether justoutcomes can be achieved for an accused Aboriginal person when they elect to be tried byjury and there are no Aboriginal people on that jury. This paper will argue that while there isa widespread issue of under-representation of Aboriginal people on jury rolls that needs to beaddressed and that while many Aboriginal accused persons would be better served in non-traditional criminal justice settings, in the event that an Aboriginal accused person is tried byjury and there are no Aboriginal people on the jury, a just outcome can still be achieved forthat person.Charter Rights and the Formulation of Juries The Canadian Charter of Rights and Freedoms (1982) establishes rights “to be presumedinnocent until proven guilty according to law in a fair and public hearing by an independentand impartial tribunal” (s. 11(d)) and “to the benefit of a trial by jury where the maximumpunishment for the offence is imprisonment for five years or a more severe punishment” (s.11 (f)). Collectively, these two sections create a “representativeness right”, as set out in R. v.Sherratt, through which an accused has the right to a jury that is representative of thecommunity (R. v. Kokopenace, 2013). R. v. A.F. established that “community” must beinterpreted broadly, so that the jury can fulfil its role as a democratic institution (R. v.Kokopenace, 2013). The purpose of this right is to facilitate the selection of a competent andimpartial jury and to promote confidence in the verdict and the criminal justice systemgenerally. It is important to recognize that the representativeness right applies throughout,but is not absolute. That is, the jury selection process must inherently facilitaterepresentativeness, but no jury must be composed in any particular way. The province has totake reasonable steps to ensure a representative jury roll, such as sending notices, facilitatingtheir delivery and receipt, and encouraging responses, but once a potential juror is includedon the roll, that juror has the same odds of being selected to a jury panel as any other juror,regardless of their background (R. v. Kokopenace, 2013). A representative jury roll coupled withthe random selection procedures ensures that juries fulfil the representativeness right. The formulation of juries falls under the purview of provincial governments. InOntario, the 1990 Juries Act establishes a three-step process for the formation of jury rolls andjury selection. First, the sheriff of each county, or another provincial officer to whom theseduties have been delegated, determines the number of persons needed on the jury roll for thecoming year and sends out the necessary jury service questionnaires. Potential jurors areidentified by randomly selecting names from the most recent municipal enumeration, so longas they are residents of the county or district, Canadian citizens and at least 18 years of age(determined through the questionnaire). Secondly, jury panels (a smaller pool from which theactual jury is selected) are randomly selected from these jury rolls and issued a summons tocourt. Jury panel members may be excused due to illness or undue hardship that would becreated by sitting on the jury. In addition, both the Crown and defence are permitted toremove members of the jury panel. Both sides have unlimited “challenges for cause” – theycan attempt to demonstrate that a potential juror is not impartial and thus have themexcused. Both sides also have between 4 and 20 “peremptory challenges”, depending on theoffence, with which they can ask for a potential juror to be excused without providing areason (Criminal Code, 1985, s.634). Following all of this, 12 jurors are selected to serve on the &0&

trial jury (R. v. Kokopenace, 2013; Iacobucci, 2012, p.27). Juries must reach a unanimous verdictor else they are “hung” and a mistrial is declared. Since the municipal enumeration process does not include those who live onAboriginal reserves, the Juries Act dictates a special procedure for including them on the juryroll. The sheriff or an agent acting on his or her behalf is required to use any available list ofreserve residents to randomly select names to be added to the jury roll and send notices. Theremainder of the process is the same for reserve residents (R. v. Kokopenace, 2013).Under-Representation of Aboriginal Persons on Jury Rolls in Canada Despite the provision for including on-reserve Aboriginal persons on jury rolls andthe existence of the representativeness right, there is a widespread issue in Canada ofAboriginal persons being seriously under-represented on jury rolls and, consequently, onjuries. This can be attributed to government failures, access issues, and widely held reluctanceto participate in the criminal justice system by Aboriginal persons. Past cases have overturnedguilty verdicts when it has been demonstrated that the state has not done enough to ensurejury rolls are representative, particularly of residents of Aboriginal reserves (Iacobucci, 2013,p.32). Access issues are created primarily through geography and language. Many reserves aregeographically isolated, which results in jurors from reserves often having to be flown to triallocations, which is time consuming and costly. Furthermore, some First Nations people donot fluently speak English or French, thus creating additional barriers to accessibility(Iacobucci, 2013, p.60-61). Aboriginals also have a much lower participation rate in the criminal justice systemthan non-Aboriginals. For example, in the Kenora judicial district in Ontario, the rate ofreturned questionnaires from eligible jury roll members was 7.6% for on-reserve individualsand 56% for off-reserve individuals in 2007. That rate went as low as 6.3% in 2011(Iacobucci, 2013, p.36-37). Iacobucci (2013) attributes this reluctance to the historicaldiscrimination and oppression of Aboriginal people through the criminal justice system andthe clash in values, culture, laws, and ideologies that exists between the criminal justicesystem and Aboriginal peoples (p.54-55). Additionally, there is a lack of knowledge andawareness about the justice system, its processes, and its societal role amongst the Aboriginalpeople. Furthermore, Iacobucci (2013) notes the influence of a widely taught culturalprincipal upon Aboriginal people’s willingness to participate as jurors, which states that oneshould not judge or direct another’s actions. Many Aboriginal people are unwilling to act asjurors because sitting on a jury necessitates finding another person guilty or innocent, whichcan negatively impact that person’s future (p.54). Ultimately, Aboriginals generally see thecriminal justice system as a foreign system that imposes norms that do not reflect theirculture or values, that they do not understand or trust, and that they have been subjected tounwillingly. Thus there is very little desire to work with the system. Iacobucci, a former Supreme Court Justice, recently wrote a report on Aboriginalrepresentation on juries, and made several recommendations to improve the process. Theseinclude: creating an Assistant Deputy Attorney General position in charge of Aboriginalissues, providing more comprehensive justice education programs for Aboriginals, andamending the Juries Act with respect to Aboriginals in a number of ways (Iacobucci, 2013,p.8-9). Although implementing these recommendations will be costly and time consuming,the under-representation of Aboriginals on juries in Canada is a serious issue that needs to beaddressed. Following through on these recommendations will result in more juries havingAboriginal representation, and representativeness in juries – a constitutionally affirmed rightpertaining to a fundamental institution of democracy –is crucial for creating and maintainingpublic confidence in the integrity of criminal justice system. Even if these recommendations are implemented, there will still be inevitable casesin which Aboriginal accused persons face a jury without Aboriginal jurors, due to reformstaking time to be implemented and/or statistical improbability. The question, then, is whether &1&

justice can still be achieved in such circumstances. While the history of marginalization anddiscrimination of Aboriginals in Canada and the criminal justice system is widelyacknowledged, one might suggest that these factors are more suited for consideration insentencing (which the jury plays no role in), rather than in the jury’s determination of guilt.That is, an accused’s background does not change whether they did something or not, but itmight affect how they should be punished. To this point, the Supreme Court established in R.v. Gladue that when sentencing Aboriginal offenders, several sociocultural and historicalfactors must be considered. These “Gladue factors” include substance abuse, experiencing orwitnessing abuse, and a family history of crime or residential schooling. Judges must considerreasonable alternative sentences to prison in light of the applicable factors, and often thisleads to sentences and outcomes that are more suited to Aboriginal values of justice (JusticeEducation Society, 2014). While these factors apply once guilt is determined, it must not beforgotten that most criminal offences have two fundamental elements – actus reus (guilty act)and mens rea (guilty mind). Thus, determining whether an accused person committed thecriminal act is only part of the picture. As will now be discussed, culture and historicalexperiences can influence intent, which is usually a part of mens rea, and thus it is important tobe cognizant of the role these factors can play in determining guilt.Aboriginal Theory of Mind, History, and Relationship with the Justice System When discussing Aboriginal culture, it is important to acknowledge that there isgreat diversity within the cultures of Aboriginal communities. This section will discuss somebroad general themes about the mind, history, and culture that are found in many Aboriginalcommunities, but they do not necessarily apply to all. It is also important to be conscious ofthe fact that much of the literature on these topics has been analyzed and discussed through anon-Aboriginal lens, from the outside looking in (Mehl-Madrona & Pennycook, 2009, p.87-89). Keeping this in mind, generally Aboriginal cultures focus more on the communityand relationships rather than the individual. Mind is said to exist between people not within aperson, and identity is driven by shared stories. Brain is not synonymous with mind – rather,mind exists through stories gathered through relationships with others, while brain is what isaffected by these stories and relationships. (Mehl-Madrona & Pennycook, 2009, p.92-95). Inaddition, Aboriginal cultures tend to place a greater emphasis on spirituality and holism.Living things besides human beings are given greater spiritual value and the supernatural isoften embraced. A “cosmic framework” underlies the Aboriginal worldview, in which sourcesand effects of mental and physical illnesses are attributed to factors beyond physiology,perhaps in other realms or aspects of the universe (Hahn, 1978, p. 32-33). It is obvious thatthese perspectives are quite different from the traditional Western perspective, and thus aone-size-fits-all justice system that does not account for culture can create conflicts. It isevident how cultural differences could affect the perception of intent – intent is traditionallyexclusively tied to an individual’s mentality and observable reality, but this is incongruouswith a theory of mind that is founded on relationships with other people, the community, andspiritual factors. The history of colonialism in Canada and its negative effects on Aboriginal peoplesare no secret. Aboriginal children were sent to segregated residential schools, where they werefrequently abused, marginalized, and forced to abandon their culture in favour of Europeanculture. Past governments have “sought to assimilate Aboriginal peoples by eradicating theirculture, languages, lifestyles and spirituality, [which] resulted in a loss of self-esteem and self-sufficiency” (Zimmerman, 1992, p.369). In addition, these past policies “created a cycle ofdependence, poverty and despair which all too often leads to conflict with the law”(Zimmerman, 1992, p.369). Indeed, Aboriginals are over-represented throughout criminaljustice system practices, including arrests, charges, and incarcerations (R. v. Kokopenace, 2013).Although Aboriginal people are treated much better now than they were in the past, the &2&

effects of the poor treatment are not confined to the past. Many profound issues affectingAboriginal people today, such as low socio-economic status, criminalization, and substanceabuse, are attributable to the historic injustices Aboriginal people faced (Zimmerman, 1992,p. 369). Thus, history continues to affect the present and cannot be ignored today, in thecourts or elsewhere. As previously discussed, there is a widespread reluctance amongst Aboriginalpersons to participate in the criminal justice system due to an incongruity of norms, values,and goals. These incongruities, along with a lack of understanding and respect for the lawsand system further support the notion that Aboriginal culture should be considered whendetermining guilt. Indeed, if one does not understand the law or believes they have merelyacted in line with their own culture, then the intent element would be affected. The IacobucciReport (2013) emphasized a desire amongst Aboriginal people to have greater influence andcontrol in the criminal justice process, rather than having a foreign system of norms and rulesimposed on them. In response to these issues, alternative culturally responsive criminaljustice measures have been developed and implemented. The Report reflects that Aboriginalleaders have appreciated these alternatives and seek to have them sustained and increased(p.58). Aboriginal justice initiatives are diverse and are tailored to the communities thatthey are employed in. Andersen (1999) describes them generally as “the production ofpeaceful subjects through an acceptance of individual and community responsibility,predicated on and wrapped in a discourse of ‘tradition’”(p.304). Healing the involved partiesand community is also key (Andersen, 1999, p.306). Examples of such initiatives areappointing Aboriginal judges, court workers, and police; offering cultural awareness trainingfor non-Aboriginal justice administrators; and creating Aboriginal court programs. Theseprograms are often referred to as “restorative justice” initiatives and include such programs assentencing circles or panels involving elders and community members, sentence advisorycommittees, and community mediation committees. These are also diversion programs, asthey divert accused persons or offenders out of the traditional justice structures. Althoughmost of these programs are still under the supervision of provincial courts, a fact someAboriginal groups take issue with, for the most part the programs have been successful andwell received as they are better fitted to Aboriginal values and ideals (Iacobucci, 2013, p.62).Thus, as long as the programs are effective in achieving their justice goals, it seems reasonableto direct most Aboriginal accused persons into these justice initiatives. Permitting theprovince to still have oversight over these programs without directly controlling them, whilenot pleasing to all, is a reasonable compromise and would give the projects more legitimacyto the wider public. Therefore, it is clear that elements of Aboriginal history and cultureshould at least be considered in the determination of the degree of guilt, either by a judge orjury. In light of this, the question is how to best address and incorporate these issues in a jurytrial to achieve just outcomes.How to Best Address These Issues Since Aboriginal history and culture are relevant in determining degree of guilt, it iscrucial that jurors understand these issues. While some have argued that mandating that anAboriginal person (or more than one) be on every Aboriginal accused person’s jury is the bestway to achieve this (Johnson, 1985, p.1696-1697), strongly encouraging expert witnesstestimony on these subjects and their relation to law and culpability is the preferable method.This argument parallels Forcese’s (1992) argument that educating all police officers aboutrace issues is a better way to prevent racism than hiring a few racial minority police officers(p.70-72). The idea is that simply introducing a small minority of people from themarginalized group will not change the system – buy-in from all parties is crucial toinclusivity and respect. In addition, if the single juror consistently dissented, whether out ofspite for the system or an honestly held contrary belief, and this resulted in juries being & )&

repeatedly hung, the justice system would grind to a halt and public faith in the effectivenessand integrity of the system would likely decrease. This is the opposite of what the justicesystem and a representative jury are supposed to do. Having a jury fully composed ofAboriginal persons would obviously not be representative either. Thus, the preferablesolution is to encourage expert witness testimony about the effects of Aboriginal culture andhistory on legal elements in trials of Aboriginal accused persons. There is a history of the government adapting the law to be more accommodatingfor Aboriginal persons, such as through the Gladue factors and restorative justice programs,which makes one wonder if something similar could be implemented for jury representation.Aboriginal people do hold a distinct legal and constitutional status in Canada, and thispermits the government to treat them differently in law (R. v. Kokopenace, 2013). However, ithas already been established that mandating that a single Aboriginal juror be present on eachAboriginal accused person’s jury would not be effective and that mandating the all jurors beAboriginal for an Aboriginal accused defies the representativeness right. As it has beenargued that unanimous juror education on Aboriginal culture and history is crucial, perhapsmandating education of this nature could be useful. Regardless of whether that is mandatedor just strongly encouraged, it is possible that as jurors become more educated on these issuesand their interplay with the law, decisions may naturally start to change. This is notguaranteed, but it is possible, and it would result in the law evolving in a new, moreaccommodating direction for Aboriginal people. One recent development of note is that in March 2015, the Ontario governmentpassed a new temporary policy that allows on-reserve Aboriginal people to voluntarily addthemselves to jury rolls for coroner’s inquests. This creates a volunteer juror list thatsupplements the normal list and increases the chances of actual juries being representative.The policy applies until December 31, 2016 and was introduced in order to resume twelveinquests into the deaths of Aboriginal people. The inquests had been ceased by Ontario’sChief Coroner due to the lack of Aboriginals, particular those living on reserve, on jury rollsin the relevant districts. Although underrepresentation is obviously a major issue in criminaltrials, not just inquests, the policy only applies to inquests and thus jury selection for criminaltrials will continue unchanged (Vincent, 2015). One key difference between criminal trials and inquests is that inquests are aboutfinding out how someone died and making recommendations, not about assigning criminalresponsibility. Iacobucci (2013) notes that this is much more consistent with traditionalAboriginal conceptions of justice, and his research indicates that Aboriginal people would bemore interested in participating in the justice system through a process like this (p.92).Another key difference is that jurors are selected from jury rolls differently in inquests than incriminal and civil trials. In inquests, the coroner issues a warrant requiring the Provincial JuryCentre to deliver a list of potential jurors residing in the district. From that list, the Coroner’sConstable subsequently chooses people whom they believe to be “suitable to serve as jurorsat an inquest” and issues summonses requiring them to attend. As randomness in selection isnot required in this process, it is conducive to a volunteer process. For these two reasons,Iacobucci (2013) recommends in his report instituting a process whereby Aboriginals canvolunteer to be on jury rolls for coroner’s inquests (p.92). However, policies such as these cannot eliminate the problems entirely. This policyonly enables Aboriginal people to voluntarily put themselves on juror rolls; it does not ensurethat they will be selected to sit on the actual juries. Thus, while the policy will theoreticallymake the juror pool more representative and therefore more conducive to just outcomes, itdoes not absolve issues of systematic bias that could be present in the selection process.Iacobucci (2013) seems optimistic that the unique process of juror selection for inquests willresult in more Aboriginal people being selected by the Coroner’s Constable (p.92). However,this process, by giving selection power to one individual without any element of randomness, &&

could actually exacerbate the issues of bias that prevent Aboriginals from being selected.Caution should therefore be exercised. Even if changes such as mandatory juror education on Aboriginal culture andhistory and greater use of volunteer juror lists occur, just outcomes could still be inhibited ifjurors are racist towards Aboriginals. Although LaPrairie (1997) notes that knowledge of theimpact of race throughout the criminal justice system is rudimentary and contradictory andthat the role of race and racial bias in criminal justice decision-making may be less impactfulthan is widely believed (p.42), the Supreme Court acknowledged in R. v. Williams in 1998 thatthere was evidence of widespread racism against Aboriginals that materialized in systemicdiscrimination in the criminal justice system (R. v. Kokopenace, 2013). While education fromexpert testimony would hopefully lead to greater understanding and therefore reducepotential racism, the issue deserves consideration. In light of the findings in Williams, theCourt affirmed the right of an Aboriginal accused to challenge jurors for cause based on “arealistic potential for partiality or prejudice in the community” (R. v. Kokopenace, 2013). Thus,means already exist to eliminate explicit racial bias. As a result, the concern should be more focused on implicit racial bias. Implicitbiases result from the fact that humans do not always consciously or intentionally control theprocesses of social perception, impression formation, and judgment that inspire their actions(Larson, 2010, p.143). Implicit biases affect how we interpret information and make decisions– tasks that jurors must undertake. Furthermore, implicit bias may be more prevalent insituations of uncertainty, particularly when the implications are important, such as a trial(Larson, 2010, p.148-150). Thus, implicit bias of jurors is a legitimate concern. While noresearch has examined the influence of implicit bias in trials of racial minority accusedpersons, it is clear that implicit biases exist and can be influential in a trial setting (Larson,2010, p.154-155). In order to address potential implicit racial biases, Larson (2010) recommendsmaking members of the jury panel take an Implicit Association Test (IAT) that measuresautomatic associations between white or minority (Aboriginal) faces and positive or negativeconcepts (p.158-159). The IAT functions by measuring response times to these stimuli –association response time for two stimuli corresponds with their associational strength – andit has been accepted as a valid and effective measure of implicit biases. Lee (2013) suggests some other methods for identifying and eliminating or reducingimplicit bias (p.1586). She highlights recent research that indicates that making race salient(drawing attention to the accused’s race, but also making jurors aware of racial issues andhow they can bias decision-making) can help individuals who are not explicitly racist suppressstereotypical responses that would otherwise be automatic. That is, race salience blocksimplicit biases from taking effect. The evidence suggests that making race salient yields equaloutcomes for all accused persons and does not result in overcompensation (Lee, 2013, p.1589& 1608). While it was suggested earlier that expert witness testimony could be beneficial ineducating jurors on Aboriginal culture and history and their collective influence on the law,Lee (2013) also suggests that an expert witness could be called to help the jury understandimplicit biases and their influence (p.1596). Finally, positive outcomes have also beenachieved in past cases where the presiding judge has explicitly told the jurors to be wary ofthe implicit biases they may hold and to try not to let these influence their judgments (Lee,2013, p.1598). Thus, methods exist that can and should be implemented to reduce implicitbiases in jurors and yield more just outcomes. However, even if these methods are implemented, it is unlikely that bias can be fullyeliminated, especially considering that there are many biases that exist. For example, a wealthyAboriginal man might have other, non-racial biases towards the accused if she were a poorerAboriginal woman. Thus, the best recourse to limiting bias would be taking advantage of theopportunities to challenge potential jurors for cause based on bias, incorporating methods toidentify and reduce or eliminate implicit biases, and ensuring that sitting jurors are very well &&

educated on the relevant issues. While racism might never be fully eliminated, if theaforementioned tactics are used, racism should not inhibit Aboriginal accused persons fromachieving just outcomes in the absence of Aboriginal jurors.Conclusion In conclusion, it is clear that there is a pressing issue of under-representation ofAboriginal persons, particularly those who live on reserves, on juries and the jury rolls thatjuries are selected from. This needs to be addressed immediately, as doing so will result inmore Aboriginal people serving on juries, thereby increasing representativeness and publicconfidence in the system. While more Aboriginal accused persons should be diverted torestorative justice programs that adhere to Aboriginal cultural values and ideals, there will stillbe inevitable cases in which an Aboriginal accused person faces a jury trial. In thesecircumstances, it is most important that all jurors understand how Aboriginal culture andhistory affect the law, and this can best be achieved by encouraging expert testimony.Although, racial biases do exist, there are established methods for preventing explicit bias,and methods to identify and reduce implicit biases should be introduced. It is imperative thatour justice system yields just outcomes for all, particularly those who are marginalized, whilemaintaining the integrity of the justice system. Although doing so will require manyimprovements to be made, it is possible for Aboriginal accused persons to achieve justice inthe absence of aboriginal jurors. REFERENCESAndersen, C. (1999). Governing aboriginal justice in Canada: Constructing responsible individuals and communities through ‘tradition’. Crime, Law and Social Change, 31(4), 303-326.Canadian Charter of Rights and Freedoms, s 2, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.Criminal Code, R.S.C. 1985, c.46, s.634.Forcese, D. P. (1992). Policing Canadian Society. Scarborough: Prentice-Hall Canada.Goldflam, R. (2011). The white elephant in the room: Juries, jury arrays and race. Aboriginal Law Bulletin, 7(26), 35-38.Hahn, R. A. (1978). Aboriginal American psychiatric theories. Transcultural Psychiatry, 15(1), 29-58.Iacobucci, F. (2013). First Nations representation on Ontario juries (Report of the independent review conducted by The Honourable Frank Iacobucci). Retrieved from http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/iacobucci/pdf /First_Nations_Representation_Ontario_Juries.pdf.Johnson, S. L. (1985). Black innocence and the white jury. Michigan Law Review, 83(7), 1611-1708.Justice Education Society. (2014). Gladue and Aboriginal Sentencing. Retrieved from the Justice Education Society website http://www.justiceeducation.ca/research/aboriginal- sentencing/gladue-sentencing.LaPrairie, C. (1997). Reconstructing theory: Explaining Aboriginal over-representation in the criminal justice system in Canada. Australian & New Zealand Journal Of Criminology, 30(1), 39-54.Larson, D. (2010). A fair and implicitly impartial jury: An argument for administering the implicit association test during voir dire. DePaul Journal for Social Justice, 3(2), 139-171.Lee, C. (2013). Making race salient: Trayvon Martin and implicit bias in a not yet post-racial society. North Carolina Law Review, 91(5), 1586-1612.Mackay, A. W. (1992). Federal-Provincial responsibility in the area of criminal justice and Aboriginal peoples. University of British Columbia Law Review, 26, 314-322.Mehl-Madrona, L., & Pennycook, G. (2009). Construction of an Aboriginal theory of mind and mental health. Anthropology of Consciousness, 20(2), 85-100.R. v. Kokopenace, 389 Court of Appeal for Ontario. (2013). Retrieved from the CanLII website www.canlii.org/en/on/onca/doc/2013/2013onca389/2013onca389.html.Vincent, D. (2014, March 4). New Ontario regulation paves way for aboriginal inquests to proceed. The Toronto Star. Retrieved from http://www.thestar.com/news/canada/ 2015/03/04/new-ontario-regulation-paves-way-for-aboriginal-inquests-to-proceed.html.Zimmerman, S. (1992). Revolving door of despair: Aboriginal involvement in the criminal justice system. University of British Columbia Law Review, 26, 367- 426. & ,&

Policing Gender and Sex:Canada’s CorrectionalPolicies and Procedures,the Gender Binary, and itsImpact on the TransgenderCommunity Stephanie Rodrigues Image Source: <www.advocate.com/society/transgendered/2009/11/13/fixing-corrections> ABSTRACT The purpose of this paper is to examine the dominant assumptions of gender and sex that are embedded within the institutional features of Canadian society. It explores how Correctional Services Canada’s (CSC) policy reproduces and perpetuates the gender binary. The policy assumes that only two gender categories exist (man/women), which neatly correspond to the categories of biological sex (male/female) (McGill & Kirkup, 2013, p.128).!In investigating three features of CSC’s policy affecting transgender inmates—strip searches, housing, and sex-reassignment surgery—this author argues that the deep institutionalization of these gender norms enables the punishment of trans bodies for transgressing the dominant assumptions, thus perpetuating the oppression of transgender individuals. This paper concludes by calling for policy reform in order to create a clear framework that respects and improves the lives of trans individuals. & -&

Introduction Despite the shift toward greater legalized protections for the LGBTQ community,transgender Canadians “continue to experience overwhelming rates of discrimination,unemployment and underemployment, poverty, harassment and violence…” (McGill &Kirkup, 2013, p.99). Contributing to this reality are the dominant constructions of gender andsex that are embedded within the institutional framework of society, which limit the abilityfor trans individuals to achieve rights and for policies to address their needs. Specifically,Correctional Services Canada’s (CSC) policies reproduce the dominant gender norms,perpetrating the oppression of trans individuals. This paper will begin by locating transgenderissues within the Canadian context, highlighting the inherent difficulties trans Canadians facein a society operating under traditional gender assumptions. In addition, the paper willilluminate the deep institutionalization of these dominant gender norms by exploring threefeatures of CSC’s policy: strip searches, housing, and sex-reassignment surgery. Finally, thispaper will offer a proposal for policy reform in order to create a clear framework thatrespects trans individuals.Transgender Concerns in the Canadian Context Despite secured protections, including the recognition of same-sex marriage andprohibition of discrimination based on sexual orientation, there remains few legal protectionsfor those with a ‘non-traditional’ gender identity; only Ontario and Manitoba’s human rightscodes contain explicit protections for transgender individuals, while minimal protections existwithin the Charter of Rights and Freedoms and the Canadian Human Rights Act. (Egale Canada,2013, p.1) This legislative gap is the result of: (1) the exclusionary nature of the mainstreamgay and lesbian movement and (2) the narrow ability of contemporary legal discourse torespond to trans realities. (1) Exclusionary Features of the Gay and Lesbian Movement The gay and lesbian movement has pursued specific goals, at the expense ofmarginalizing the concerns of trans Canadians. In the 1980s, the movement experienced ashift to elite leadership, resulting in the “abandonment of social justice struggles that concernthe most vulnerable […] trans people” (Spade, 2011, p.65). This exclusionary agenda ishighlighted in the five public policy issues raised by the Canadian LGBTQ movement: (1)freedom from discrimination; (2) relationship recognition; (3) hate crimes/hate speech; (4) sexual freedom andmoral regulation; (5) social policy (Smith, 2006, p.4-17). A common thread within these policyissues is the primacy of sexual autonomy (which is the recognition of sexual orientation in thecivil and employment realm) over gender autonomy. This comes in sharp contrast to thesocial justice concerns of trans Canadians which include changing sex identification onofficial documents, accessing sex-reassignment surgery (SRS), and receiving equitabletreatment in prison (Erni, 2013, p.140). Simultaneously, it has concentrated the benefits to alimited group of gay/lesbians. Marriage recognition “ignores how race, class, ability,indigeneity and immigration status determine access to those benefits and reduces the gayrights agenda to a project of restoring race, class, ability and immigration privilege to themost privileged gay and lesbians” (Spade, 2011, p.65). Consequently, the official LGBTQmovement has forfeited concerns focusing on gender and body autonomy in favour ofadvancing a narrow and privileged agenda. (2) The Narrow Legal Discourse The availability of legal tools for trans individuals is limited, forcing them toconform to traditional categories (McGill & Kirkup, 2013, p.103). However, trans persons donot necessarily fit into this single traditional category. In anti-discrimination law, transindividuals, who experience multiple forms of discrimination, are forced to “distil complexsocial identities and experiences into a single enumerated ground” (McGill & Kirkup, 2013,p.124). For instance, a trans Aboriginal woman is likely to experience oppression based on & .&

race, identity and gender. However, under the framework of anti-discrimination law, herexperience would be understood by a “singular lens of gender identity” as the multiple formsof oppression would be “irrelevant to [the] legal analysis” (McGill & Kirkup, 2013, p.126).This narrow understanding does not account for the lived realities of trans Canadians.The Gender Binary The inherent inability for trans individuals to mobilize within the gay and lesbianmovement and access formal legal tools reflects the deeply entrenched gender binary withinCanadian society. The gender binary assumes that only two gender categories exist(man/women), corresponding neatly to the categories of biological sex (male/female)(McGill & Kirkup, 2013, p.128). As previously discussed, the mainstream gay and lesbianmovement fails to reflect trans goals, advancing a narrow and privileged agenda.Furthermore, the legal tools available do not accommodate the complexities of identity,making reconciliation between the complexities of gender and law difficult. Theseassumptions actively shape discourse and institutional policies and procedures, which in turn,rely and operate under the same gender conceptions. Therefore, Canada’s correctional policyregarding transgender inmates is a product of society’s status quo arrangements, relying onthe dominant binary assumptions of gender and sex.Corrections Canada’s Policy Regarding Transgender Inmates CSC has designed three policy areas to address transgender inmates: (1) stripsearches; (2) housing placements; and (3) access to sex-reassignment surgery. However, thesefeatures reflect the problematic underlying values of dominant gender assumptions. (1) Strip Searches Strip searches reflect a dominant system of power, where trans bodies are punishedand the gender binary is reasserted. Theoretically, an inmate receiving a strip search mustidentify as transgender to gain access to any ‘options’. However, officers may have seriousdoubts regarding their identity, allowing officers to ask several invasive questions to verifytheir status (Kirkup, 2009, p.111). Therefore, when bodies do not conform to the standardsof the dominant gender binary, they are subject to coercive control (Kirkup, 2009, p.111).Such process requires the need for verifications, denying the transgender inmate meaningfulaccommodations to address their needs, reducing autonomy and self-identification. Although no explicit guidelines exist, CSC’s policy provides a standard sampleprotocol for searching inmates. According to this protocol, a male-to-female (MTF) searchshould go as follows: “With respect to a strip search, male officers will ask Inmate X if he accepts that the search be completed by male officers. If so, the male officers will complete the search. If Inmate X has concerns, then a pat-down search will occur followed by male officers completing the search of the lower body leaving the top clothed, allowing the inmate to dress – the inmate will be fully observed at all times during the turnover to female officers. The female officers will then complete the search of the upper body leaving the lower body clothed.” (Commissioner’s Directive 566-7, 2012). This sample protocol reflects the inherent challenges trans inmates face. The inmateis given the choice to be strip-searched by a male officer. If the inmate has concerns aboutthis, a split search will ensue instead. What these concerns may be are not mentioned in thisprotocol. However, this comes in conflict with the findings in Forrester v. Peel (RegionalMunicipality) Police Services Board, 2006, which state that transgender inmates are to be offeredone of three options prior to conducting a strip-search: male officer(s) only, female officer(s)only, or a split search (male and female officer(s), depending on the area of the body being & /&

searched) (Kirkup, 2013, p.64). In the protocol above, Inmate X has concerns about beingstrip searched by male officers. However, Inmate X was not given the option to have afemale only strip search but instead, a split search took place. It is problematic not to affordthe option of a female-only search as it removes any bodily autonomy from the transgenderinmate. In Forrester v. Peel, the Human Rights Commission recognized the psychological injuryForrester suffered by having male-only and “split searches” when Forrester identified as awoman (Kirkup, 2009, p.110). Although the CSC is not bound by the decision in Forrester v.Peel, the Commission’s findings shed light on CSC’s problematic sample protocol whichundermines bodily autonomy. Furthermore, this sample protocol is limited as it providesminimal guidance to officers. For instance, in the case that a transgender inmate has aconcern, officers may have doubt that their concern is ‘legitimate’ (Kirkup, 2009, p.124). Atransgender inmate’s concerns should be viewed as valid. However, such ambiguity allows forofficers to exercise their discretion dangerously. Transgender inmates challenge the existing power structure of gender normativity.Those in society that “do not adopt gendered ‘norms’ based on their anatomy will besubjected to abusive, hyper-visible scrutiny” (Kirkup, 2009, p.118). Therefore, ambiguity indiscretionary powers to search allows for actions to be taken against trans individuals in orderto reassert the gender binary in an environment where lack of guidance and fears aboutbodies and sexualities arise. In this sense, strip search officers play an important role inregulating bodily norms, where exercising control over transgender bodies reinforces thenaturalized, hegemonic status (Kirkup, 2009, p.116). Ultimately, strip searches of transgenderinmates reveal a deeply embedded gender binary at play. (2) Housing Placements Correctional Services Canada has designed a policy in order to deal with thereception of pre-operative MTF and pre-operative female-to-male (FTM) inmates: “Pre-operative male-to-female offenders with gender identity disorder shall be held in men's institutions and pre-operative female to male offenders with gender identity disorder shall be held in women's institutions.” (Commissioner’s Directive 800, 2012) However, this interpretation relies on biological sex in the determination of atransgender individual’s status, rather than allowing inmates to self-identity. Therefore,genitalia are the determining factors in placing inmates. The unwillingness for CSC to allow trans inmates to self-identify reflects theperceived challenges trans bodies present; placing them in a facility congruent with theirgenitalia, rather than identity, is a reassertion of dominant norms in a gendered prison system.This puts them at the risk of rape and sexual abuse (Mintz, 2013, p.1). Consequently, inplacing them in the ‘wrong facility,’ transgender inmates are punished both for theircriminality, via incarceration, and for challenging the accepted gender norms. Within prisons,there is a deeply embedded sexual code of hypermasculinity that defines MTF inmates as“fair game,” since MTF inmates are “defined in terms of their femininity” (Erni, 2013, p.142).As a result, trans individuals are forced to conform to this sexual code despite feelings ofalienation, and are subjected to physical and psychological harm. These housing policies reflect a “gender panic.” These are situations whereindividuals react to disruptions of the biology-based gender expectations by intenselyreasserting the male-female binary (Westbrook & Schilt, 2014, p.34). As a result, thismotivates the policing of gender-segregated spaces. Transgender individuals are perceived assexual dangers in gender-segregated spaces; for example, women are constructed as“vulnerable” and thus in female prisons, the fear would be that MTF inmates would sexuallyassault women (Westbrook & Schilt, 2014, p.47). This reinforces the heteronormativeconception of males/females that “all bodies with male anatomies, regardless of genderidentity, desire female bodies” (Westbrook & Schilt, 2014, p.48). As a result, trans bodies are & 0&

punished – forced to conform to the gender-segregated facilities – privileging the traditionalconceptions of gender and sex. Traditionally, CSC has sought, as a solution to their safety concerns, to segregatetransgender individuals. Mintz (2013) states that “administrative segregation differs little frompunitive segregation or solitary confinement,” excluding them from “recreational, educationaland occupational opportunities and associational right” and subjecting them topsychologically damaging isolation (p.11). This punishes and excludes the victim, not theaggressor. Segregation is used as a mechanism to marginalize transgender inmates, allowing“abusive correctional staff to access them alone and out of sight of other prisoners and videosurveillance” (Mintz, 2013, p.12). Therefore, segregation is a tool to punish trans bodies inthe gender-segregated system. (3) Access to Sex-Reassignment Surgery (SRS) CSC’s policy regarding SRS states that: “Sex reassignment surgery shall be considered during incarceration only when: a. a recognized gender identity specialist has confirmed that the offender has satisfied the real life test, as described in the Harry Benjamin Standards of Care, for a minimum of one year prior to incarceration; and b. the recognized gender identity specialist recommends surgery during incarceration. If the recognized gender identity specialist provides an opinion that sex reassignment surgery is an essential medical service under CSC's policy, CSC will pay the cost.” (Commissioner’s Directive 800, 2012) According to CSC’s interpretation, SRS shall be considered, not guaranteed, only whenthe individual satisfies multiple qualifications, which are based on a medical model ofidentifying gender. This reinforces the deeply embedded gender and sex norms, perpetuatingoppression and neglecting the needs of transgender inmates. An inmate must first pursue and be diagnosed with Gender Identity Disorder(GID) by an expert in order to qualify for any further assessments. To be diagnosed, a personmust show a “strong and persistent cross-gender identification…” and “[p]ersistentdiscomfort with his or her sex or sense of inappropriateness in the gender role of that sex,”and experience “clinically significant distress or impairment in social, occupational, or otherimportant areas of functioning” (Markman, 2011, p.320). However, the term disorder impliesone is suffering from an illness which requires intensive and invasive medical assessments toaddress the condition. Therefore, CSC’s language reinforces gender assumptions as itsuggests that gender is merely the consistency between maleness/femaleness with designatedbiological genitalia. Essentially, gender ambiguity forces the reliance on medicalunderstandings to assess, monitor and exercise control over trans bodies; those non-conforming individuals are construed as sick and diseased. In addition, the inmate must satisfy the “real life test” (RLT) as per the HarryBenjamin Standards of Care. Following the decision in Kavanagh v. Canada, the RLT requiresthat an individual must have lived as a transgender person for at least one year in thecommunity, prior to being imprisoned (Stone, 2014). However, this standard imposed doesnot account for those who transition within institutional environments or for those who havelived as their targeted gender, but not under the care of a gender clinic (Findlay 1999, p.24).As a result of these restrictions, those who have not conformed to the standardizedconditions set out by the RLT must be categorized by their external genitalia, reinforcing thedominance of the gender binary. & 1&

In order for CSC to fund SRS, it must be considered an essential medical service.Essential medical services include emergency health care (situations in which a delayendangers the life of the inmate), urgent health care (situations which are likely to deteriorateto an emergency) and mental health care (Commissioners Directive 800, 2012). However, in2010, the Canadian federal government discontinued funding for trans inmates, claiming thatSRS is not an essential medical service, and taxpayers should not fund criminals (Harris,2010). This effectively reduces the necessity of SRS to a mere voluntary cosmeticenhancement of one’s body. However, denial of SRS can result in “self-mutilation, addictionand/or suicide” and thus, is a life-threatening health concern (Findlay, 1999, p.35). In thisregard, CSC neglects the needs of transgender individuals. The denial of SRS placestransgender inmates as undeserving. Transgender inmates are punished for their criminalityand their deviation from societal standards. This reasserts the dominance of the gender binaryover its challengers. As of April 27, 2015, CSC has changed the language of its policy in an attempt toprovide more clarification regarding SRS. However, these changes merely echo the notion thattransgender inmates must be questioned, examined and verified in order to qualify for SRS.Transgender inmates still require a qualified health professional to diagnose and recommendSRS as an essential medical service, and \"in making the decision, the qualified healthprofessional will consult with CSC\" (Commissioner's Directive 800-5, 2015). This adds anadditional barrier by requiring the health professional to consult with CSC in the decision,further reducing any chance of objectivity. In addition, an inmate must have lived \"12continuous months in an identity-congruent gender role\" outside of prison (Commissioner'sDirective 800-5, 2015). This explicit restriction of \"continuous\" does not take into account thefluid nature of gender, excluding those who have not lived in their chosen gender continuouslyor those who transition within prison. Therefore, CSC's policy increases the degree of controlCSC exercises over trans bodies and thus, continues to neglect the needs of transgenderinmates.Proposal for Reform CSC policies do not meaningfully respond to the realities of trans Canadians.Adjustments must be made to the CSC’s policies in order to dismantle the embedded binarythat regulates understandings of sexuality and gender in the correctional setting. CSC mustrecognize the rights of transgender inmates to self-identify. Self-identification wouldaccommodate the complexities of gender, which correctional officers are not equipped tointerpret. Gender identity is fundamental to a person’s identity, and should not be governedby others. As of January 2015, Ontario introduced a new policy “designed to better protectthe rights of trans people in the province’s correctional facilities” (Kirkup, 2015). This newpolicy now allows for transgender inmates to self-identity, removing the decision to admitand place trans individuals based on their genitalia (Ministry of Community Safety andCorrectional Services, 2015). Furthermore, such policy eliminates the privilege placed onthose who have undergone SRS (Kirkup, 2015). In making self-identification the centralconsideration in the admission and placement of trans inmates, this new policy is a step in theright direction in recognizing and respecting trans rights. Although more changes need to bemade, Correctional Services Canada should adopt a similar policy to allow transgenderinmates to self-identify. In congruence with reducing the reliance of the biological classification system,language must change in order to remove associations of ‘disorder’ and ‘sickness’. Forexample, sex reassignment surgery implies one is correcting a problem; gender-affirming surgeryimplies one is complete, on their own personal terms. This would also assist transgenderindividuals in the court system. The courts continue to rely on medical notions, making itdifficult for trans individuals to gain their desired legal status. Moreover, the RLT shouldinclude time spent in prison. For instance, “living as a woman in a male prison is the most & 2&

difficult conceivable ‘RLT’…” (Findlay, 1999, p.24) and thus, prison experience should beaccepted for SRS. Not having access to SRS treatment is life threatening and it should be considered afunded essential medical service. To deny such essential health services, on the basis thattaxpayers should not pay would cause serious physical and psychological harm to transgenderindividuals. In order to respect principles of human rights and abide by the Charter, fundingmust be provided. As a result, CSC must create an explicit framework for strip-searching,reducing harm and providing trans inmates the three choices, in congruence with Forrester v.Peel. Choice allows individuals to be searched based on their own conceptions of identity.However, trans self-identification must be “the only relevant consideration in determiningwhether or not the three choices would be offered to the detainee” (Kirkup, 2009, p.124).This will loosen the grip of the gender binary. In unraveling transgender rights and CSC’s policies affecting transgender inmates –strip searches, housing, and sex reassignment surgery – the dangerous risk of perpetuating asystem which supports the gender binary becomes clear. To move toward an adequateframework of inclusivity, one must contest and resist the existing dominant social, politicaland economic arrangement of Canadian society. If individuals do not contest the dominantnorms, society and its institutions will continue to marginalize and punish transgenderindividuals. REFERENCESCorrectional Service Canada. (2012). “Commissioner’s Directive 566-7.” Searching of Inmates. Retrieved from http://www.csc-scc.gc.ca/text/plcy/cdshtm/566-7-cd-eng.shtml.Correctional Service Canada. (2012). “Commissioner’s Directive 800.” Health Services. Retrieved from http://www.csc-scc.gc.ca/text/plcy/cdshtm/800-cde-eng.shtml.Correctional Service Canada. (2015). \"Commissioner's Directive 800-5.\" Gender Dysphoria. Retrived from: http://www.csc-scc.gc.ca/politiques-et-lois/800-5-gl-eng.shtml.Egale Canada. (2013). Overview of LGBT human rights in Canada. Office of the High Commissioner for Human Rights. Retrieved from http://lib.ohchr.org/HRBodies/ UPR/Documents/Session16/CA/EGALE_UPR_CAN_S16_2013_Eagle_E.pdf.Erni, J.N. (2013). “Legitimating transphobia: The legal disavowel of transgender rights in prison.” Cultural Studies, 27(1), 136-159.Findlay, B. (1999). “Transsexuals in Canadian prisons: An equality analysis.” Justice and Equality Summit. Retrieved from http://www.hawaii.edu/hivandaids/Transsexuals_in_ Canadian_Prisons__An_Equality_Analysis.pdf.Harris, K. (2010, November 19). Prison system grapples with transgender inmates. The Toronto Sun. Retrieved from http://www.torontosun.com/news/canada /2010/11/19/16228286.html.Kirkup, K. (2009). “Indocile bodies: Gender identity and strip searches in Canadian criminal law.” The Canadian Journal of Law and Society, 24(1), 107-125.Kirkup, K. (2013). “Best practices in policing and LGBTQ communities in Ontario.” Ontario Association of Chiefs of Police. Retrieved from http://www.oacp.on.ca/ Userfiles/Files/NewAndEvents/OACP%20LGBTQ%20final%20Nov2013.pdf.Kirkup, K. (2015, January 26). Ontario’s welcome move on rights shows reality of trans people in prisons. The Globe and Mail. Retrieved from http://www.theglobeandmail.com/globe- / ontarios-welcome-move-on-rights-shows-reality- of-trans-people-in-prisons/ article22638122.Markman, E. (2011). “Gender Identity Disorder, the gender binary, and transgender oppression: Implications for ethical social work.” Smith College Studies in Social Work, 81(4), 314- 327.McGill J, & Kirkup, K. (2013). “Locating the trans legal subject in Canadian law: XY v Ontario.” Windsor Review of Legal and Social Issues, 33, 96-140.Ministry of Community Safety and Correctional Services. (2015, January 26). Ontario's policy for the admission, classification and placement of trans inmates. Retrieved from http://news.ontario.ca/mcscs/en/2015/01/ontarios-policy-for-the-admission- classification-and-placement-of-trans-inmates.html. & )&

Mintz, J.E. (2013). “Treatment of transgender inmates – The double punishment.” Law School Student Scholarship. Retrieved from http://scholarship.shu.edu/cgi/viewcontent.cgi? article=1271&context=student_scholarship.Smith, M. (2006). “Queering public policy: A Canadian perspective.” Annual Meeting of the Canadian Political Science Association. Retrieved from http://www.cpsa- acsp.ca/papers-2006/Smith.pdf.Spade, D. (2011). Normal life: Administrative violence, critical trans politics and the limits of law. Brooklyn, NY: South End Press.Stone, L. (2014, April 22). “B.C. legal clinic wants rules changed for transgender prisoners.” Global News. Retrieved from http://globalnews.ca/news/1284410/b-c-legal-clinic- wants- rules-changed-for-transgender-prisoners/.Westbrook, L. & Schilt, K. (2013). “Doing gender, determining gender: Transgender people, gender panics, and the maintenance of the sex/gender/sexuality system.” Gender and Society, (28)1, 169-194. &&

Specifying The Policy DistinguishingThe Non-Mental Disorder And Mental Disorder Automatism Defences Amanda KomljenovicABSTRACT This paper illuminates the conflicting nature of the current practices withboth forms of the automatism defence in current Canadian criminal justice policy.Non-mental disorder and mental disorder automatism are often usedinterchangeably and incorrectly to answer the difficult question of whether toascribe criminal responsibility to those who claim incapacity and lack of autonomyfor their actions. The current policy differences between these two variations in thedefence are uncertain and cause legal disparities in sentencing due to confusionbetween what appear to be similar forms of behaviour. These policies are premisedon and bound only by past court decisions using a “holistic test”, “entitled”acquittals as a result of successfully meeting that test, and an unclear definition of“impairment” resulting from constant flux in opinion between internal and externalbehaviour. This paper recommends reform to the current automatism policies,resolving discrepancies in the misuse of the defence by properly assessing thecurrent definition and appropriate threshold of mental and physical impairment,codifying the defence statutorily rather than solely by case law, and focusing thedefence by subjectively filtering out external and self-induced causes fromphysiological causes of the actus reus. A successful reform of both the policy andpractice of the current automatism defence will help to eliminate commonconfusion with the section 16 “not criminally responsible” provision in the CriminalCode of Canada that grants diminished culpability should accused persons lack thecapability to appreciate the nature and quality of the act or should they not knowthe act was wrong. To separate the difference between the product of a disease ofthe mind and involuntary acts that appear to occur with thought, reflection, andrationality lies at the core of the defence and needs to be assessed upon furtherstudy.Image Source: <http://www.psychologytoday.com/basics/morality> &&

Introduction Canadian criminal law is premised on the assumption that actors are rational,commit deliberate acts, and have the requisite mental element to do so. A “voluntary” andconscious actus reus is paired alongside a mind that must be operating and capable of makinga decision or choice. The criminality of the act is questioned, however, when those claimingthe automatism defence argue unconsciousness and incapacity of their decisions. Thedetermination of criminal responsibility of those rendered in a state of mentalunconsciousness, temporarily or not, exemplifies one of the most difficult issues encounteredin criminal law. The current threshold differences between mental disorder and non-mentaldisorder automatism are unsettling and uncertain, and cause legal disparities in sentencingbased on similar kinds of mental impairment. This paper seeks to explore the ways in which these disparities have arisen, focusingon codified policies that allow the possibility for such sentencing disparities and promoteleniency as a result. These policies include the non-mental disorder “holistic test” and thesubsequent non-mental disorder “entitled” acquittal that is most often granted as a result ofmeeting that test. Using the test and system of acquittals to achieve a greater sense of finality,it is endorsed by the existing unclear definition of mental “impairment” based on aninsufficient distinction between internal and external causes of automatic behaviour. Thispaper will call on suggestions for improvement by implementing a more stringent definitionof “impairment” by changing the common law automatism defence to a statutory onecodified in the Criminal Code. Further, these proposals can be substantiated by narrowing thedefinition of “impairment” in non-mental disorder automatism cases to strictly physiologicalcauses that give rise to involuntary behaviour.Precedent and the Rise of the Holistic Standard The Supreme Court of Canada ruling in R. v. Stone (1999) developed a “holisticapproach” to determine whether those suffering from an unconscious mental state possess adisease of the mind that can justify potential indefinite state custody after an obligatoryraising of a s.16 “not criminally responsible” (NCR) finding. This holistic approach is onethat, despite having to account for the need to protect the public, the mental condition ofaccused persons, reintegration, and any other needs, is based primarily on the risk ofcontinuing danger rather than an in-depth focus on the nature and analysis of the behaviouritself (Verdun-Jones, 1994). The “continuing risk” test has become the primary policycomponent that aids courts in defining a “disease of the mind”. This test does not require ananalysis of the behaviour itself and gives rise to numerous flaws that ultimately cause extremesentencing disparities due to a lack of clear definition. Though founded by the SupremeCourt in R. v. Stone (1999) as a test: “…not to be treated as exclusive and conclusive … todetermining the issue of a disease of the mind such as may be expected of a ‘theory’” (Yeo,2002, pg. 451), the analysis of whether automatic behaviour is likely to recur and thus pose athreat to society creates the challenge of defining a disease of the mind in terms of oneovertly broad and general standard. The assumption that the holistic approach is enough to narrow the difficult task ofdefining a disease of the mind becomes the chief concern that generalizes those sufferingfrom non-mental disorder and mental disorder automatism as one, although they are twoopposing thresholds. Those found not to be a threat to society, even if automatic behaviouris a result of mental illness, are given an automatic and entitled acquittal and thus treatmentneeds are lost in the finality of the case. In contrast, those whose behaviour is simply“internal”, such as physiological behaviour, but is perceived as likely to recur are labeled withthe stigma that such behaviour is a threat to society and forces the statutory s.16 NCRconsideration in potentially unfit circumstances. It is without question that the currentinability for courts to codify adequately the common law automatism defence promotes theuse of such a broad “holistic” test that quite often requires the s.16 statutory defence when it & ,&

may not be necessary. The application of the holistic approach developed in Stone (1999) ofasking whether a disease of the mind exists solely depending on an accused’s threat to societyis not enough to dismiss accused persons as not having any mental illness that may needattention should the holistic test not apply. The holistic approach, rather, becomes one that isless holistic in the factors that define a disease of the mind, and more so one that fails todefine coherently the adequate distinction between automatic behaviour in non-mentaldisorder and mental disorder cases. Thus, sentencing disparities arise from the sole focus onprotecting the public because this fails to properly analyze the distinctions of automaticbehaviour that may be a result of various forms of mental and physical impairment.Defining Impairment: Physiology, Psychology, and the Law A continuing flaw in the automatism defence is the courts’ inability to properlydistinguish and codify “impairment”. Along with the holistic approach, the Supreme Courtbuilt the distinction between impairment in non-mental disorder and mental disorderautomatism cases using what is referred to as the internal and external cause. The Court heldthat non-mental disorder automatism is defined as involuntary behaviour caused by someexternal factor that results in a transient disturbance of consciousness, while involuntarybehaviour caused by factors internal to accused persons are indicators of a disease of themind (Beaumont, 2006). The Court’s distinction using the internal and external cause testfails to properly categorize involuntary behaviour and thus promotes the obscurity that itpresents. For instance, external behaviour categorized as a transient disturbance ofconsciousness is limited to behaviour that is outside the inner workings of the mind, notlikely to recur, and thus not likely to present a threat to society. Such a distinction, thoughsometimes appropriate, fails to recognize those suffering from mild forms of mental illnessand ignores any behaviour as a result that does not appear to be recurring. Likewise,behaviour that is seen as internal and thus “psychological” wrongly categorizes those whosuffer from physiological impairment into the realm of NCR on account of an assumeddisease of the mind. In the latter case, the Court’s inconsistent application of a definition arbitrarilypromotes the wrongful categorization of those suffering from probable recurring behaviourcaused by physiology, such as hyperglycemia, into an “internal” cause, so that the behavior isassessed on the capacity to appreciate and know the resulting criminal act was wrong. Forexample, the excess of glucose in the bloodstream in hyperglycemia cases is often viewed as atrigger resulting from “internal” causes. Courts have recognized that the opposing deficiencyof sugar in the bloodstream that is characteristic of hypoglycemia, however, gives rise todissociative and “external” mental states due to a diabetic deficiency that could have beenprevented. Such examples demonstrate the confusion between biological and physiologicalcauses that are presumed to affect psychology, but wrongly categorize a simple difference asan extreme that makes a statement about an accused’s mental health instead. In doing so, theinvoluntariness that the automatism defence is premised on is lost in the analysis of anotherdefence. The inability to properly codify a definition of impairment in both uses of theautomatism defence, beyond the mere internal and external cause dichotomy, gives rise toarbitrary and inapplicable distinctions of behaviour that blur the line between two distinctdefences based on very similar forms of behaviour.Policy Recommendations To codify a proper and more in-depth definition of involuntary behaviour inautomatism cases that goes beyond the internal and external cause, the external behaviourthat defines non-mental disorder automatism should place a stronger focus on physiologicaldisturbances to the body rather than psychological disruptions of the mind. In changing thecommon law automatism defence to one that is statutory and codified, the law will create aplace for proper acquittals for involuntary behaviour by result of physiological causes, such as & -&

a blow to the head, epilepsy, or forms of hypoglycemia that Canadian courts have alreadyrecognized in past precedent. Separating the defence through detailed distinctions allows thelaw to focus more attention and care to involuntary behaviour as a result of internal causes,such as any mild form of mental illness, without forcing categorization into the separate NCRdefence. As already known, should those suffering from involuntary behaviour in automatismcases wish to prepare their defence by proceeding through s.16 in a second trial, the right isgiven to them. It should not be policy, however, that the display of involuntary behaviour dueto an internal cause broadly labeled as a “disease of the mind” force a launch into an NCRcase. Separating and therefore more appropriately defining internal and external causes ofbehaviour will allow courts to address behaviour that is both physiological and transient, andthus those deserving of an acquittal. Behaviour that may be a result of a mental illness,additionally, can be addressed without neglecting treatment needs by placing it into a non-mental disorder automatism category should it not meet the broad and inappropriate currentdefinition of a “disease of the mind”. In meeting these goals, McSherry’s (2004) critique on the current external causesthrough Peter Cane’s theory of “fleeting mental states” can help define and narrow externalautomatic behaviour as unconscious, involuntary behaviour, the causes of which are strictlyphysiological. Fleeting mental states are defined as states of mind that may occur in a shortamount of time and are often confused with distinctions between mental and physical originsof conduct (McSherry, 2004). In previous precedent, the law has accepted evidence ofautomatism arising from sleep disorders, physical blows, consumption of alcohol and/ordrugs, and more importantly, dissociation arising from great external stress (McSherry, 2004).If aiming to reform the legal definition of automatism by restricting the focus onpsychological illness, it is not possible for courts to recognize self-induced behaviour, such asconsumption and dissociation, as physiological without being drawn to psychologicalconcepts such as autonomy and volition. Similar to the example of the complex differencebetween hypoglycemia and hyperglycemia, behaviour that is triggered by inducingphysiological changes and thus considered “fleeting” does not presume that all otherbehaviour other than such is due to the complex inner psychological workings of the mind.Although behaviours in non-mental disorder automatism cases are often defined as transientdisturbances of consciousness, behaviour that is the result of drug and/or alcoholconsumption and external stress should not be viewed as being physiologically triggered, butrather assessed separately in the realm of the court’s authority. In Stone (1999), the sudden “whoosh” that the accused felt as a result of the victim’sprovocation, therefore, is a fleeting mental state of dissociation caused by great external stressand should not have been seen as behaviour that justifiably gives rise to what the accusedconsidered a “complete loss of self-control”. Similarly, the expert psychiatric testimony thatdefined Stone’s behaviour as a result of extreme psychological blows should not have resultedin confusion between automatism and provocation. As McSherry (2004) notes, provocationresults in a partial lack of self-control, while automatism results in a full loss of self-control(p.448). The claim of non-mental disorder automatism in Stone was rightly unsuccessful. Thisshould have been because dissociation is not a physiological condition that pardoned full lossof the accused’s self-control. A statutory, more refined, and strict definition of non-mentaldisorder automatism that is the result of physiological conditions, such as those that can bedefined biologically, medically and external to the mind, is necessary to ensure a morecoherent and successful application of the defence. Involuntary behaviour that is the productof the mind, moreover, should be assessed under a refined category of mental disorderautomatism that is subjective, analytical, and on a case-by-case basis that is free from the fearof indefinite state custody and application by the Ontario Review Board with the separateNCR defence. Prior to its repeal in 2013, dissociation was defined in the Diagnostic and StatisticalManual of Mental Disorders, Fourth Edition, as: “…a disruption in the usually integrated & .&

functions of consciousness, memory, identity, or perception of the environment.” (McSherry,2004, pg. 452). It was rightly recognized that although such disruptions are common inautomatism cases, the unclear definition so broadly used within the court system promotedthe general and catch-all approach that the automatism defence is already struggling with. Asindicated by previous example in Stone, dissociation should not be enough to renderbehaviour completely involuntary. The unclear definition of a disease of the mind in manycases results in the use of internally caused behaviour (that which is associated with recurringand non-transient triggers) that is defined by any one of these dissociative states. Thus, theconstant application of dissociative, “fleeting” mental states that are permitted to excuseaccused persons does nothing but further confuse the imprecise policies that the courts havefailed to update (Schopp, 1991). Moving away from dissociative states and placing a strongerfocus on the new definition already mentioned would ensure that the uncertainty of thecurrent policy will no longer give rise to automatism as a more readily available defencewhere it may not necessarily apply. In order to proceed with properly legislating the defenceoutside of courtroom practice, the physiology and fleeting states that can differentiate causesthat are “external” from the mental faculties that must be absent to define “internal” causesof behaviour must be specified. Doing so will further separate the present distinctionsbetween both forms of the defence that are often confused due to the court’s persistence inconflating similar forms of impaired behaviour.Conclusion The current policies among both the non-mental disorder and mental disorderautomatism defences are unclear and objectively inapplicable to many cases. The first step inimproving the quality of the defence requires the codification of automatism as a statutorydefence in the Criminal Code, rather than its current status as a common law defence codifiedonly by precedent. In doing so, courts will be forced to apply much needed changes in thecoherence and specificity of the defence itself. This can be done by keeping currentdefinitions of internal and external causes of impairment, but adding more depth anddistinction to each. It is suggested that external causes of behaviour that give a currentdefinition of non-mental disorder automatism be refined to include behaviour that is basedprimarily on physiological triggers, such as those caused by epilepsy, sleep disorders,hypoglycemia, and so on. Further, the definition needs to eliminate what McSherry (2004)elaborates as potentially self-induced “fleeting mental states”, such as dissociation, that areaccepted simply because they have no relation to the psychology of the mind. Doing so willensure a stronger focus on upholding the finding in Stone (1999) to focus on provinginvoluntariness in automatism cases rather than proving the capacity to appreciate and knowthat the criminal act was wrong. Separating physiological cases of automatism into its owncategory creates a place for behaviour triggered by the mind and other mental faculties, suchas severe to mild mental illness that is free from the forced and often incorrect assumptionthat such behaviour is a disease of the mind under s.16. It needs to be recognized that increating automatism as a statutory defence, the required inclusion of automatism-likebehaviour into s. 16, as well as the uncertainty that has long existed with using the “holistic”approach simply to define a disease of the mind based on behaviour internal to accusedpersons, will be treated as the separate defence that it is. Ensuring that such policies areupdated and refined will certainly ease the controversy between defining, categorizing, andsentencing among the various cases within the expanding automatism defence. & /&

REFERENCESBeaumont, G. (2006). Automatism and hypoglycaemia. Journal of Forensic and Legal Medicine, 14(2007), 103-107.Criminal Code, R.S.C. 2014, c C-46, s 16.Lederman, E. (1985). Non-insane and insane automatism: Reducing the significance of a problematic distinction. International and Comparative Law Quarterly, 34, 819-837.McSherry, B. (2004). Criminal responsibility, “fleeting states” of mental impairment, and the power of self-control. International Journal of Law and Psychiatry, 27, 445-457.McSherry, B. (2005). Afterword: Options for the reform of provocation, automatism, and mental Impairment. Psychiatry, Psychology and Law, 12(1), 44-49.R. v. Parks, [1992] 2 S.C.R. 871; 1992 SCC 22073.R. v. Stone, [1999] 2 S.C.R. 290; 1999 SCC 26032. Schopp, R. F. (1991). Problematic defenses: Automatism. In Automatism, Insanity, and the Psychology of Criminal Responsibility: A Philosophical Inquiry (pp. 71-85). Cambridge: Cambridge University Press.Schopp, R. F. (1991). Automatism. In Automatism, Insanity, and the Psychology of Criminal Responsibility: A Philosophical Inquiry (pp. 132-159). Cambridge: Cambridge University Press.Verdun-Jones, S. (1994). The insanity defence in Canada: Setting a new course. International Journal of Law and Psychiatry, 17(2), 175-189.Yeo, S. (2002). Clarifying automatism. International Journal of Law and Psychiatry, 25, 445- 458. & 0&

Considering Psychopathy as aDeviant Personality TypeMelika Azari ABSTRACT This paper aims to demonstrate the flawed nature of the current conceptualization of psychopathy as a mental disorder. Consequently, this paper will argue that psychopathy is better conceptualized as a deviant personality type rather than as a mental disorder. This paper will begin with an examination of the history of psychopathy as a term, with specific emphasis on its evolution from a social construct into a clinical label, and the ways in which the emergence of the category of psychopathy provided a convenient method for the classification of behaviourally deviant individuals. There will also be an exploration of the current conceptualization of psychopathy with reference to the original work of Cleckley (1980), who was an influential figure in developing the current classification of psychopathy, and Hare (1980), who later developed the Psychopathy Checklist–Revised (PCL-R) from Cleckley’s original work. In addition, there will be references made to the relation between criminality and psychopathy as a term, the relation between normative personality traits and psychopathic personality traits, and the macro level processes which may contribute to the emergence of psychopathic traits that are falsely categorized as constituting a distinct mental disorder. Finally, there will be acknowledgement and critique of the neuroscientific evidence that attempts to validate psychopathy as a distinct medical condition. & 1&

Introduction The Diagnostic and Statistical Manual of Mental Disorders, currently in its fifth edition(American Psychiatric Association, 2013), does not explicitly define the term psychopathy.However, the symptoms associated with psychopathy are classified under the category ofAntisocial Personality Disorder. Correspondingly, the majority of contemporary scholarshipregards psychopathy as a mental disorder. This essay will take a position against this view andargue that psychopathy is better classified as a deviant personality type rather than as adistinct mental disorder. First, there will be a brief introduction to the history of psychopathyas a term. Second, there will be a discussion of the current conceptualization of psychopathy.Third, there will be a discussion on the traits associated with psychopathy. Fourth, anargument in favour of the view that psychopathy is a mental disorder will be presented andrefuted. Finally, there will be a brief conclusion.The History of Psychopathy An examination of the history of the term psychopathy demonstrates that it hasevolved from a relatively ambiguous concept to a distinct mental disorder, but one which, inactuality, captures a group of deviant individuals rather than a group of mentally disorderedindividuals. Accordingly, psychopathy was not always a clinical label. In fact, the category ofpsychopathy struggled to obtain the status of a clinical label (Walker & McCabe, 1973, p.205). This struggle was related to the qualities of psychopathy; since psychopathy entailed anabsence of delusions and hallucinations, physicians were reluctant to consider this conditionas a mental illness (Walker & McCabe, 1973, p. 206). This reluctance suggests that physiciansdoubted the existence of psychopathy as a qualitatively distinct mental disorder. The fact thatpsychopathy is currently classified as a personality disorder under the category of mentaldisorders demonstrates that the concept has evolved significantly. Prior to the classification of psychopathy as a mental disorder, psychopathy was anambiguous term with a variety of descriptions. Rafter (1997) reviews the first texts that usedthe term in the United States and concludes that the authors themselves were unaware of thespecific nature of the condition they were describing (p. 249). Consequently, the psychopathwas generally perceived as someone who was distinctly ‘different’ and on the borderline ofnormal and abnormal (Raftar, 1997, p. 250). The concept of the psychopath was originally astereotype used to refer to a group of individuals who appeared to behave in a deviantmanner, in comparison to the behaviours of mainstream society. The concept of psychopathymay have evolved considerably because of the ways in which stereotypes are generallycreated. As the process of stereotype formation suggests, there is a distinct contrast effectthat predicts individuals are more likely to form stereotypes about a particular group based onfeatures that distinguish the focus group from the context group (Wyer, Sadler, & Judd, 2002,p. 443). Accordingly, the context group embodies what the normal standard of behavior isthought to be and is what the focus group is judged against during stereotype formation.Given the behavioural differences between psychopathic and non-psychopathic individuals,the development of psychopathy as a stereotype based on visible behavioural differences washighly probable. However, this stereotype was so powerful that it eventually earned theascription of a mental disorder. This ascription is problematic because psychopathy is bestcategorized as a deviant personality type. Ramon (1986) argues that the term psychopathy was beneficial to the state becausethis categorization offered the ability to manage a group of difficult individuals (p. 240).Specifically, the categorization of psychopathy allowed the profession of psychiatry to obtainand maintain control over a group of individuals who behaved in socially unattractive ways(Ramon, 1986, p. 240). Thus, the creation of the concept of psychopathy as a stereotype, aswell as a specific category, allowed the management of behaviours that were ‘different’ andundesirable. However, deviant individuals should not be labeled as being mentally disorderedjust because they behave in an undesirable manner. A reason why the concept of psychopathy & 2&

evolved into a medical label, regardless of the fact that it better characterized deviant ratherthan mentally disordered individuals, may be related to the fact that psychopathy did notgenerally warrant sympathy. That is, psychopathy was more likely to cause suffering to othersthan to the person categorized as being psychopathic and, as a result, this condition did notinduce any sympathy among members of society (Ramon, 1986, p. 226). Perhaps this lack ofsympathy subsequently evolved into viewing psychopathic individuals with a degree ofprejudice. Consequently, this prejudicial view may have forced these deviant individuals to beeventually categorized as possessing a medical condition rather than a deviant personalitytype.Current Conceptualization of Psychopathy Cleckley (1998) was a significant figure in influencing the current conceptualizationof psychopathy when he identified and discussed sixteen characteristics as being indicative ofthe condition (p. 377-338). Hare (1980) later operationalized the symptoms identified byCleckley and developed the Psychopathy Checklist, later simplified as the PsychopathyChecklist–Revised. The fact that Hare (1980) reformulated the original symptoms thatCleckley relied upon suggests the presence of a shortcoming in Cleckley’s (1980) originalwork. That is, Hare was aware of the ambiguity present in Cleckley’s attempt to definepsychopathy. Accordingly, Hare (1980) states that even a detailed reading of Cleckley’sproposed characteristics can leave the reader confused in regards to the nature of the specificcategory (p. 112). This is problematic because Hare’s Psychopathy Checklist–Revised is themost frequently used tool for the assessment of psychopathy (Hare & Neumann, 2008, p.218). Therefore, the current conceptualization and the most common measure ofpsychopathy was developed on the foundation of a vague and confusing description.Furthermore, the accuracy of the Psychopathy Checklist–Revised was measured using acriminal population and Hare (1980) notes the inability to predict how the scale will measurepsychopathy in the general population (p. 118). This supports the argument that the categoryof psychopathy is a deviant personality type rather than a mental disorder because the validityand utility of the Psychopathy Checklist–Revised has thus far only been accuratelydemonstrated in deviant populations such as criminals. In an analysis of the Psychopathy Checklist–Revised, Blackburn (2007)demonstrates that the items overlap, but are fundamentally different from personalitydispositions (p. 142). Since psychopathy is classified as a personality disorder, this argumentweakens the view that psychopathy is a mental disorder because it establishes how the mostcommonly used assessment tool for a psychopathic personality disorder contains items thatessentially differ from personality characteristics. This may be a consequence of the fact thatHare’s Psychopathy Checklist–Revised was developed on the basis of Cleckley’s ambiguouscharacterization of psychopathy. Furthermore, psychopathy cannot be categorized as amental disorder if the foundation of its current conceptualization and current method ofassessment are inherently flawed in measuring and defining psychopathy. The standards ofproving the existence of a medical label are presumably higher than the standards of using adescriptive label, which would only describe individuals who are deviant in terms of theirpersonality. Thus, because the current conceptualization of psychopathy is problematic andnot well understood, psychopathy would be better categorized as a deviant personality typerather than a distinct mental disorder. Additionally, Blackburn (2007) argues that the essential characteristics ofpsychopathy are more closely linked with Narcissistic and Histrionic Personality Disordersthan Antisocial Personality Disorder (p. 142). As the symptoms of psychopathy are listedunder the category of Antisocial Personality Disorder in the current version of the Diagnosticand Statistical Manual of Mental Disorders, this raises a significant concern regarding the currentcategorical distinction of psychopathy. In other words, it demonstrates the presence of aconsiderable degree of symptom overlap. Therefore, the current conceptualization of &,)&

psychopathy as a mental disorder is so vague that this category is more closely linked withother personality disorders rather than its own category. This relates to the view thatpsychopathy is a deviant personality type rather than a mental disorder because it suggestsanother inherent flaw in its conceptualization, as well as in the way it is measured as acondition in the Diagnostic and Statistical Manual of Mental Disorders. A valid mental disorder must contain a clear categorical distinction and as littlesymptom overlap as possible. For instance, Schizophrenia is a distinct mental disorder as itconsists of a psychosis with the presence of delusions and hallucinations (AmericanPsychiatric Association, 2013). Although individuals diagnosed with Bipolar Disorder mayalso experience psychosis during the manic phase (Beentjes, Goossens, & Poslawsky, 2012, p.189), Schizophrenia and Bipolar Disorder are distinctly different mental disorders, with thesymptom overlap present to a lesser degree in comparison to Antisocial Personality Disorderand other personality disorders. The fact that the characteristics of psychopathy are present inthe categorization of other personality disorders suggests that it is a broad category and, as aresult, it would be better defined as a deviant personality type rather than a specific mentaldisorder with a significant amount of symptom overlap.Traits Associated with Psychopathy A psychopathic personality is associated with the display of extreme traits. That is,the characteristics of psychopaths may be described as being in the range of abnormalbehaviour. As Meloy (2001) states, the tendency to develop a psychopathic personality isbased on under-arousal, minimal anxiety, and a lack of emotional attachment (p. 3). Thesequalities are extreme to the extent that they differ from normative behaviours and, as a result,they are rare. However, not all abnormal behaviours are classified as being mental disorders.Other extreme behaviours such as possessing above average intelligence are not consideredmental disorders. In fact, above average intelligence tends to be highly regarded as it signifiesan extraordinary ability to succeed scholastically or in the workforce. There must be aqualitatively distinct feature related to psychopathy which causes it to be classified as a mentaldisorder rather than a deviant personality type. This may be related to how the concept ofpsychopathy suggests that psychopathic individuals commit a substantial quantity of seriouscrime (Walters, 2004, p. 133). Correspondingly, many psychiatrists view the concept ofpsychopathy as being equal to criminal recidivism (Holmes, 1991, p. 79). A significant association between criminality and psychopathy supports the viewthat psychopathy is a deviant personality type because it demonstrates that psychopathy, as amental disorder, is emphasized in terms of deviant behaviour rather than individual suffering,which is a general characteristic of mental disorders. As Blackburn (2007) notes, anexaggeration of the association between psychopathy and criminality has concealed the natureof psychopathy as a condition resulting in harmful behaviours that are not always in the formof criminal behaviour (p. 142). The fact that psychopathy is emphasized in relation to deviantbehaviour, and as a consequence to criminality in general, may have had the influence ofhiding the features of psychopathy that make it a deviant personality type. Therefore, it canbe advantageous to consider psychopathy as a deviant personality type rather than as a mentaldisorder that is closely linked with criminality. This approach would potentially yield moreknowledge about the nature of this deviant personality type. Federman, Holmes, and Jacob (2009) argue that the scientific community is unableto distinguish the specific condition of psychopathy and, as a result, the concept refers to themost extreme type of connection between criminality and mental disorder while lacking ascientific basis for this connection (p. 36). As the nature of psychopathy cannot bedistinguished, it cannot be classified as a mental disorder. Similarly, Kirkman (2008) providesan overview of the current construct of psychopathy and demonstrates that a clear consensusregarding the construct of psychopathy is absent in the scientific literature (p. 29).Furthermore, the fact that the concept of psychopathy tends to refer to a connection with &, &

criminality demonstrates that it would be better conceptualized as a deviant personality type.Subsequently, there must be a significant negative connotation to psychopathy as a termbecause the connection between criminality and psychopathy is made regardless of the factthat there is a lack of consensus in the discussion of psychopathy and a lack of scientificevidence supporting this connection. In fact, the label of psychopathy has such a harmfulconnotation that it has the potential to influence judges and result in a justification of harshersanctions (Zinger & Forth, 1998, p. 260). Societal changes have influenced the categorization of psychopathy as a mentaldisorder rather than a deviant personality type. As there has been a substantial increase in therealm of medical authority, the violation of social norms is more likely to include questionsconcerning mental health issues (Wootton, 1963, p. 197). Specifically, psychiatrists havebecome increasingly preoccupied with the treatment and diagnosis of mental disorders thatare related to socially undesirable behaviour (Wootton, 1963, p. 197). This change confirmsRamon’s (1986) argument that the category of psychopathy emerged in order to classify agroup of individuals who behaved in socially unattractive ways (p. 240). Also, this furthersuggests that the category of psychopathy is maintained in the same manner within which itemerged. Although blurred boundaries are characteristic of the concept of mental disorders(Lilienfeld, & Marino, 1995, p. 411), psychopathy as a category tends to refer to behavioursthat are socially undesirable. Therefore, the category of psychopathy may be culturallyconditioned and thus invalid as an accurate medical label (Nuckolls, 1992, p. 37). Individuals with psychopathy are frequently described as being selfish, deceitful,impulsive, and irresponsible (Forth & Burke, 1998, p. 205). These characteristics signifydeviant behaviour rather than a specific mental disorder. The fact that all individuals possessthe characteristics of psychopaths to some extent (Holmes, 1991, p. 81) confirms the ideathat psychopathy is better categorized as a deviant personality type than a mental disorder.Similarly, Love and Holder (2014) argue that psychopathy can be viewed as a collection ofextreme levels of normative personality traits (p. 112). Indeed, it has been argued that it isbest to consider all personality disorders as overall dimensions of personality functioninginstead of distinct categorical conditions (Vachon, Lynam, Widiger, Miller, McCrae, & Costa,2013, p. 698). In a study that examined the relationship between psychopathy, personality, andsubjective well-being, researchers concluded that psychopathy was unable to account for alarger variance than what is accounted for by personality traits (Love & Holder, 2014, p.112).Consequently, psychopathy is not a mental disorder, but rather a deviant personality typerepresenting extreme levels of behaviours that may or may not suggest levels of overallfunctioning. This is evident in the fact that, with regard to subjective well-being, psychopathyis unable to account for a variance larger than that accounted for by personality traits. Thus,psychopathy is better categorized as a deviant personality type than a distinct mental disorder. A psychopathic condition is mainly defined in relation to social terms because itconsists of the failure to conform to the standards of other people (Wootton, 1963, p. 200).The fact that a failure to conform is highlighted in the conceptualization of psychopathysuggests that psychopathy is largely a socially determined construct. However, culture playsan important role in fostering the behaviourally extreme characteristics that are associatedwith psychopathy. In other words, there are macro-level processes that foster the expressionand maintenance of psychopathic behaviour (Lösel, 1998, p. 339). Specifically, anexamination of Antisocial Personality Disorder scales demonstrates that it is positivelycorrelated with individualism (Caldwell-Harris & Ayçiçegi, 2006, p. 331). Individualism in thiscontext refers to the tendency to pursue individual goals rather than, or regardless of, thegoals and interests of collective society. Additionally, Holmes (1991) notes that due to thefact that modern society emphasizes competitiveness and materialism, psychopathy may bean adaptation to social pressures as it can potentially enhance the accomplishment ofpersonal goals (p.80). That is, an absence of moral constraints can allow individuals to &, &

function more successfully in certain circumstances (Holmes, 1991, p. 80). Similarly,Levenson (1992) provides an alternative approach to the current conceptualization ofpsychopathy and states that psychopathy is not a mental disorder, but is instead a philosophyof life that is much more widespread than is recognized (p. 51). Therefore, psychopathicindividuals should not be described as being mentally disordered when the evidence indicatesthat they possess a deviant personality type that is the result of social pressures. An argument in favour of the view that psychopathy is a distinct mental disorder isrelated to the idea that psychopathic individuals process information differently in terms oftheir physiology. In particular, a deficit in the potentiation of the startle reflex normallyassociated with the presentation of aversive stimuli has been noted among psychopathicindividuals (Patrick, 1994, p. 319). In other words, psychopathic individuals show a reducedphysiological response when presented with aversive stimuli in comparison to normalcontrols. However, this difference in the startle reflex does not validate the view thatpsychopathy is a distinct mental disorder. It is possible that psychopathy, as a deviantpersonality type, is associated with a deficit in startle reflex potentiation that is not associatedwith a specific mental disorder. There must be tangible evidence regarding an underlyingdisorder in psychopathy before it can be categorized as a mental disorder rather than apersonality type. As Mullen (2008) notes, before psychopathy continues to warrant a scientificlabel, there must be a connection between the function and structure of the brain topsychopathy as a distinct condition (p. 143). Alternatively, Pickersgill (2009) maintains that inreference to Antisocial Personality Disorder, the use of neuroscience can potentiallycomplicate the nature of the condition, while simultaneously establishing new opportunitiesfor the categorization of deviant behaviour as mental disorders. Thus, not only is the currentscientific claim that psychopathy is a distinct mental disorder with differences in physiologicalfunctioning insufficient, but the attempts to incorporate neuroscience into the psychopathyliterature may falsely legitimize the medical categorization of psychopathy, as well as otherdeviant behaviours in general.Conclusion In conclusion, the history of psychopathy, its current conceptualization, and itsassociated traits demonstrate that psychopathy is not a distinct mental disorder but rather adeviant personality type. A review of the history of psychopathy as a term demonstrates thatit has evolved from an ambiguous social construct, referring to a group of behaviourallyundesirable individuals, to the categorization of a distinct mental disorder. The currentconceptualization of psychopathy, according to Cleckley’s (1988) original characteristics ofpsychopathy and the Diagnostic and Statistical Manual of Mental Disorders, is problematic becauseof the presence of ambiguities, a significant degree of symptom overlap, and an inability toaccurately assess personality dispositions using the Psychopathy Checklist–Revised. Inaddition to these problems, a lack of consensus regarding psychopathy suggests that it is notwell understood and, therefore, it cannot warrant the label of a mental disorder. Attempts tolink psychopathy to criminality further suggest that this category is largely viewed in relationto deviant behaviour. Therefore, psychopathy is a deviant personality type consisting ofextreme normative traits that may be influenced by the social pressures of individualisticcultures. REFERENCESAmerican Psychiatric Association. (2013). Diagnostic and Statistical Manual of Mental Disorders (5th ed.). Washington, DC.Beentjes, T.A., Goossens, P.J., Poslawsky, I.E. (2012). Caregiver burden in bipolar hypomania and mania: A systematic review. Perspectives in Psychiatric Care, 48(4), 187–97.Blackburn, R. (2007). Personality disorder and antisocial deviance: Comments on the debate on the structure of the Psychopathy Checklist–Revised. Journal of Personality Disorders, 21(2), 142-159. &,,&

Caldwell-Harris, C., & Ayçiçegi, A. (2006). When personality and culture clash: The psychological distress of allocentrics in an individualist culture and idiocentrics in a collectivist culture. Transcultural Psychiatry, 43(3), 331-361.Cleckley, H. (1988). The mask of sanity: An attempt to clarify some issues about the so-called psychopathic personality, Fifth Edition (p. 337-364). Augusta, Georgia: Emily Cleckley.Federman, C., Holmes, D., & Jacob, J. D. (2009). Deconstructing the psychopath: A critical discursive analysis. Cultural Critique, 72, 36-65.Forth, A.E. & Burke, H.C. (1998). Psychopathy in adolescence: Assessment, violence, and developmental precursors. In D.J. Cooke, A.E. Forth, & R.D. Hare (Eds.) Psychopathy: Theory, Research and Implications for Society (p. 205-229). Dordrecht: Kluwer Academic Publishers.Hare, R.D. (1980). A research scale for the assessment of psychopathy in criminal populations. Personality and Individual Differences, 1(2), 111-119.Hare, R. D., & Neumann, C. S. (2008). Psychopathy as a clinical and empirical construct. Annual Review of Clinical Psychology, 4, 217-246.Holmes, C.A. (1991). Psychopathic disorder: A category mistake? Journal of Medical Ethics, 17, 77- 85.Kirkman, C.A. (2008). Psychopathy: A confusing clinical construct. Journal of Forensic Nursing, 4(1), 29-39.Levenson, M. (1992). Rethinking psychopathy. Theory & Psychology, 2(1), 51-71.Lilienfeld, S. O., & Marino, L. (1995). Mental disorder as a Roschian concept: A critique of Wakefield's “Harmful dysfunction” analysis. Journal of Abnormal Psychology, 104(3), 411-420.Lösel, F. (1998). Treatment and management of psychopaths. In D.J. Cooke, A.E. Forth, & R.D. Hare (Eds.) Psychopathy: Theory, Research and Implications for Society (p. 303-354). Dordrecht: Kluwer Academic Publishers.Love, A.B., & Holder, M.D. (2014). Psychopathy and subjective well-being. Personality and Individual Differences, 66, 112-117.Meloy, J.R. (2001). Introduction to section I. In J.R. Meloy (Ed.) The Mark of Cain: Psychoanalytic Insight and the Psychopath (p. 3-23) Hillsdale, NJ: The Analytic Press.Mullen, P.E. (2008). On building arguments on shifting sands. Philosophy, Psychiatry, and Psychology, 14(2), 143- 147.Nuckolls, C. W. (1992). Toward a cultural history of the personality disorders. Social Science and Medicine, 35(1), 37-47.Patrick, C.J. (1994). Emotions and psychopathy: Startling new insights. Psychophysiology, 31, 319- 330. Pickersgill, M. (2009). Between soma and society: Neuroscience and the ontology of psychopathy. Biosocieties, 4(1), 45-60.Rafter, N.H. (1997). Psychopathy and the evolution of criminological knowledge. Theoretical Criminology, 1(2), 235-259.Ramon, S. (1986). The category of psychopathy: Its professional and social context in Britain. In P. Miller & N. Rose (Eds.), The Power of Psychiatry (p. 214-240). Cambridge: Polity Press.Vachon, D., Lynam, D., Widiger, T., Miller, J., McCrae, R., & Costa, P. (2013). Basic traits predict the prevalence of personality disorder across the life span: The example of psychopathy. Psychological Science, 24(5), 698-705.Walker, N. & McCabe, S. (1973). Crime and Insanity in England, Volume Two: New Solutions and New Problems (p. 205-222). Edinburgh: Edinburgh University Press.Walters, G. (2004). The trouble with psychopathy as a general theory of crime. International Journal of Offender Therapy and Comparative Criminology, 48(2), 133-148.Wootton, B. (1963). The law, the doctor, and the deviant. British Medical Journal, 2, 197-202.Wyer, N. A., Sadler, M. S., & Judd, C. M. (2002). Contrast effects in stereotype formation and change: The role of comparative context. Journal of Experimental Social Psychology, 38(5), 443-458.Zinger, I., & Forth, A. E. (1998). Psychopathy and Canadian criminal proceedings: The potential for human rights abuses. Canadian Journal of Criminology, 40(3), 237-276. &,-&

Social CommunityDevelopment: AnAlternative Approach toYouth Justice Kyrel Thompson ABSTRACT This paper examines a new approach to addressing crime by exploring the relationship between crime and community development. Social community development that intends to help youth can benefit the social welfare of an entire community, creating lasting effects and ultimately reducing crime. The shortcomings of the current practices regarding youth justice will be examined to better understand why the current method is ineffective. This paper is informed by research on the psychological and social development of youth, which should form the basis of the approach for holistically helping individuals, and the community, develop. This paper will conclude with the difficulties that this approach may face, but will also show how these obstacles can be overcome by creating a new framework for dealing with crime in the community. Image Source: Banyule City Council Webpage. <http://www.banyule.vic.gov.au>. &,.&

Introduction This paper explores the relationship between crime and social communitydevelopment as an alternative method to addressing crime through the use of punitivemeasures. Social community development includes various community-based programs as ameans of dealing with crime, and crime prevention in the local neighbourhood. Researchindicates that a community-oriented approach has the potential to be more beneficial for theoverall social welfare of communities (Scott & Steinberg, 2008). Programming that deals withthe development of youth specifically is one of the vital elements for developing safecommunities (Scott & Steinberg, 2008; Christens & Dolan, 2011). This paper does not onlyaddress crime prevention directly, but also seeks to show how the development of a cohesivesocial unit can have positive effects that will indirectly include the prevention of crime. As itstands in Canada, individuals under the age of 18 are governed by the Youth Criminal JusticeAct (YCJA) (Government of Canada, 2015). This Act aims to hold youth accountable fortheir actions, while giving a punishment that is proportional to the offence committed. Asoften as possible, the YCJA also looks to use extra-judicial measures that do not requireincarceration (Government of Canada, 2015). The goal is not to incarcerate youth, but tohold them accountable while simultaneously looking to rehabilitate them. This paper willplace focus on incarcerated youth as well as those who are at a high risk of futureincarceration in order to demonstrate the effects that these approaches have on each group.Research on Punitive Sanctions Research into the contemporary criminal justice approach of using punitivesanctions has demonstrated a major discrepancy between the crime rate and the policies thathave been enacted in response. Though the overall crime rate in Canada has been on a steadydecline from the mid 1990's to the early 2000's (Cook & Roesch, 2012), there has been asteady increase of spending towards the building of prisons, employment of police andcorrectional officers, and housing inmates. This increase in spending has not been supportedby empirical evidence. Nevertheless, society has witnessed tougher laws for relatively non-violent offenses, and an overall “tough on crime” approach from politicians and policymakers (Cook & Roesch, 2012; Scott & Steinberg, 2008). However, research provides littleevidence that this method of dealing with crime is effective; the results are mixed at best.Researchers are confident that this approach is not only costly, but is more likely to increasethe rate of recidivism (Scott & Steinberg, 2008; Cook & Roesch, 2012; Stop Violence AgainstWomen, 2007). This is especially harmful for youth and adolescents, who normally age out oftheir criminal and antisocial behaviours. If these youth are incarcerated, they are more likelyto form negative peer associations and engage in future criminal activity (Scott & Steinberg,2008). When it comes to incarceration, much more harm is done to youth when comparedto the benefits it purports to have. Younger inmates are less likely to be able to adequatelycope with the conditions of prison, and are more likely to experience higher levels of stressand anxiety when compared to older offenders (Cesaroni, 2008). Along with thesepsychological harms, due to their developmental limitations, research shows that youthbenefit very little from incarceration (Cesaroni, 2008; Cook & Roesch, 2012). Incarceratedyouth are more likely to form relationships that can be more harmful than those they wouldmake in their community. Youth that have been incarcerated are shown to be moreaggressive, impulsive, and are surrounded by negative influences that reinforce antisocialbehaviours during a critical stage of development in which youth seek to create and discovertheir identity (Cesaroni, 2008). Apart from the psychosocial harm, this punitive method is also economically costly.In Canada, it costs approximately an average of $96, 000 a year to house a youth in a juvenilefacility, and $117, 000 a year to house an individual in an adult correctional facility (StopViolence Against Women, 2007; Thibault, 2014). This is money that can be put towards other &,/&

important areas such as providing better social services for communities in need. When theseyouth leave correctional facilities, they will likely have decided which type of lifestyle theywould like continue to pursue. If communities are not prepared to help youth adjust andreintegrate into their communities by creating opportunities for positive associations to showwhy abiding by the law is beneficial, these youth are at risk of once again becomingincarcerated. These youth also pose further risk of becoming consistent repeat offenders. Notonly does this negatively impact the life course of the youth, but it may also have broadercollateral consequences for the larger community. The criminal justice system becomes ahousing unit that creates and educates a future generation of criminals that will eventuallyenter back into society, continuing the cycle of crime and incarceration. This process can costtaxpayers more money, constantly paying for a short-term displacement of an individual,rather than an investment into a long-term solution. Overall, punitive measures can be seenas a limited approach that costs society a large amount of money for effects that are largelynegative. This is money that can go towards resources for communities in need. An approachthat looks to measures other than incarceration, and instead includes the proper reintegrationof offenders, is needed.Social Community Development: What it is & Why it is Important Social community development is a method of creating safer and healthiercommunities. When coupled with criminal justice, it can be seen as a means of crimeprevention that seeks to reduce the risk factors that put individuals on the path that leads to alife of crime. It is important to understand that social community development does not onlyfocus on those who are at a high risk of committing crime, or those who have already beenconvicted of a crime. Social community development looks at the community as a whole andexplores “the relationship between crime and the social, environmental, political andeconomic context in which it occurs” (Kelly et. al., 2005, p. 308). While it looks to minimizethe risk of offending, it also looks to develop a community holistically for the benefit of anentire society (Schneider, 2010). If a community can reduce their risk factors, they canprovide youth with a better chance of avoiding a life of crime, benefiting not only thatindividual specifically, but the broader society as well. These risk factors, as cited by RoyMcMurtry and Alvin Curling, include: poverty, education, family issues, and a lack of a youthvoice (Government of Ontario, 2008). The state of a community as a whole affects thosewho reside within those communities. For example, programs that support parents can havegreat benefits for many individuals: “These programs benefit children and young peopleindirectly by fostering a more positive and nurturing social environment [...] and directly byfostering resilience within at-risk children and youth” (Schneider, 2010, p. 164, emphasis inoriginal). The focus does not need to be on reducing crime for there to be effects that canlower the crime rate. When the aim is to improve the quality of living and overall well-beingof a community, research shows that those neighbourhoods and communities with a highersocio-economic status generally have lower victimization rates and are less likely to possessthe negative risk factors that lead to criminal offending (Schneider, 2010). A large part of social community development is aimed at youth. Adolescents havebeen shown to be much more receptive to means of rehabilitation when compared toseasoned adult criminals (Scott & Steinberg, 2008). This is due to the fact that sinceadolescents are not full grown adults, their psychosocial maturity is still developing in variousways; this includes their competence and understanding, IQ scores, and decision-makingabilities (Scott & Steinberg, 2008). That is why many young adults desist in criminal activitiesas they reach late adolescence (Scott & Steinberg, 2008). However if youth are brought up inenvironments that undermine healthy psychosocial development (for example, where there isa lack of positive adult or authoritative influences, negative peer groups, the inability todevelop important interpersonal and decision-making skills, and an inadequate educationalsystem), they are at a higher risk of becoming engaged in a consistent criminal lifestyle (Scott &,0&

& Steinberg, 2008). Therefore if a community can work towards creating an environmentwhere youth experience more “pro-social” relationships and minimize antisocial relationships,this can impact youth in a positive manner and will translate into a high probability thatyoung adults will accept and embrace law abiding activities (Scott & Steinberg, 2008). Thisapproach can take the form of summer camps, leadership training initiatives, and otherprograms that help to foster healthy relationships between youth and adults. These youth willcontinue to mature and grow into adults and are likely to raise their children with similarvalues, potentially creating a cycle of positive relationships that benefits all of society. Further, for individuals that have been previously incarcerated, if they can return toan environment that supports their rehabilitative efforts and provides them withopportunities to properly reintegrate into society once released, their risk of recidivism willdecrease (Scott & Steinberg, 2008). With proper guidance, these youth are more likely todevelop into individuals that will engage in actions that will facilitate the growth of a safe andhealthy community. Programs like counselling, therapy sessions, information sessions forcommunity members, or any opportunities that help to re-establish healthy relationships willbenefit the offender and the community. Furthermore, this demonstrates to the communityand broader society that those involved in a criminal lifestyle at a young age can be helpedand rehabilitated, and even further fosters a sense of a community with individualssupporting one another. These efforts can produce lasting effects – reducing the need forprisons, and creating a prolonged decrease in the crime rate, while positively affecting thecommunity.Key Elements to the Successful Implementation of Social Community DevelopmentPractices Social community development seeks to provide youth with opportunities to getinvolved in their communities in a positive way as opposed to turning to criminal activities.Looking to reduce risk factors and develop the community can help to increase informalsocial control or social bonds, pushing youth to abide by social norms rather than violatingthem (Smith et. al., 2013; Hawkins, 1999). If individuals feel like they belong, they are morelikely to protect what they feel they belong to (whether it is a gang, a school, or family). Onemethod of fostering belonging through community and social development is called youthorganizing; this is a process that brings young people together to discuss the most pressingproblems in their communities (Christens & Dolan, 2011). This helps to develop youth asleaders as well as encourages positive adult-youth interaction, as youth take the lead indecision-making processes and adults offer their support. Allowing youth to feel like theyhave a voice and a stake in what happens to their community promotes collective efficacy,which is the degree to which a group feels confident and connected to each other (Christens& Dolan, 2011; Smith et. al., 2013). When these individuals feel connected they are willing toexert positive behavioural influences (Smith et. al., 2013). In other words, the more youth feelconnected to their community, the greater the desire to protect the norms and rules of thecommunity rather than violate them. This can help to create a safer community. In order to effectively implement sustainable social community development, thestate and the local community must work together. What is most important is theinvolvement of the members of the community. It is difficult to implement effectivedevelopment programs when it is not known what the problems of the community are.Members of the community need to be able to work together and take ownership of theirneighbourhood. Cities and governments must work with communities to help empower themto develop and implement plans to suit their own needs (Hawkins, 1999). Program initiativesshould strive for youth to be in the position to receive a good education, to feel appreciated,and to have positive role models and physical and emotional support (Schneider, 2010). Inproviding these things within a community, youth are encouraged to develop in a healthy wayand to take responsibility for their own actions and lives (Schneider, 2010). Therefore, &,1&

programs such as youth based community councils, mentoring programs, teenage pregnancyinitiatives, and providing opportunities to develop interpersonal and job skills are needed foryouth (Christens & Dolan, 2011; Hawkins, 1999; Schneider, 2000; Schneider 2010; Scott &Steinberg 2008). Even recreational centers that offer programming such as sports andphysical activities provide the environment needed for positive development. Each community will have different needs and programs will need to be individuallytailored to reflect this (Hawkins, 1999; Schneider, 2000). This method stresses the importanceof having programming and ideas come from within the community and communicatedupwards to higher levels of government (“bottom-up” programming), as opposed tosolutions coming down from external, disconnected state agencies (“top-down”programming) (Hawkins, 1999). The insight provided by the community members is vital tothe proper implementation of effective programming. However, state agencies also possessresources that are needed for programs to be successful. The combined efforts to addressthese issues can help to alleviate problems such as poverty and educational barriers, and canincrease family support. It also provides people with positive opportunities, reinforcespositive behaviour, and will hopefully result in long-term benefits. This method also needs to incorporate the idea that when dealing with adolescentsthey are still to be held accountable for their actions. Adolescents involved in criminal activityshould not be ignored or permitted to do so, but they should not be treated as hardenedcriminals as it is not conducive to their psychosocial development (Scott & Steinberg, 2008).The risk factors mentioned earlier are not an excuse for youth to commit crime; adolescentsneed to be treated with proportionality and held accountable. When considering punishment,it should be relative to the crime committed. The individual must also have a clearunderstanding of why they are being punished, and the punishment must be fair for there to bea lasting effect, as outlined by the YCJA (Government of Canada, 2015, emphasis added). If ayouth (or any individual) is punished promptly, made aware of why they are being punished,and shown alternatives ways of acting, this can still promote healthy development (Scott &Steinberg, 2008). For instance, a youth that has been sentenced to do community service andattend counselling for an aggressive theft is shown that there are consequences for theiractions. However in this situation, the youth gains an understanding of how their actionsaffect others. They also gain an understanding of their own feelings, and how to behavedifferently in the future. Punishment can be used to help encourage individuals to be lawabiding when done the right way. When punishment is excessive, such as sentencing thatsame youth to three years in a youth jail, one year after the crime has been committed, thiscan lead to negative development and can be harmful to the community in the future with therelease of a young adult that has now experienced prison life.Criticisms & Obstacles Critics of the social community development approach to crime have called it highlyoptimistic as some research has shown that community based programming is most effectivein middle class neighbourhoods when compared to the lower class communities that are ingreater need of this type of programming (Schneider, 2000). It may be the case that someindividuals are too fearful to participate – especially in lower class neighbourhoods. Thiscontributes to the creation of high-crime and at-risk communities that are in need of thesedevelopment programs. Researchers note that effective social community development andcrime prevention programs are about improving the relationships not only betweencommunity members, but also between the local community and state agencies (Kelly et. al.,2005; Hawkins, 1999). Unfortunately, the balance between community and state involvementis one that is hard to achieve. The recognition of programs and services that are needed in acommunity should come from its members, but at what point do state agencies provideassistance, and most importantly, who is responsible for the funding of these programs? Theinability to answer these questions often brings a halt to many development opportunities for &,2&

communities (Kelly et. al. 2005; Hawkins, 1999; Schneider, 2000; Schneider, 2010). Communication is a large obstacle that can prevent community members fromtaking advantage of services that are being offered. One study shows that “a lack ofappropriate and effective outreach [...] contributed to low levels of participation” (Schneider,2000, p. 40). Ineffective advertisement, placement of programs and outreach strategies can becounterproductive for services that are meant to benefit the community. For example, if achildcare service is being provided, but it is inconveniently located or not properly conveyedto the public, the service is not taken advantage of due to poor communication. Socialcommunity development needs to involve a deliberate and focused method of implementingservices. Some programs are “solutions” that have not been tailored to the communities thatare in need. Solutions that work in one neighbourhood may not translate well in otherneighbourhoods. For example, some communities have programs that are only offered inEnglish; for members that speak languages other than English this presents a large barrierand does not allow for a potentially vast amount of the community to participate (Schneider,2000). This is a common barrier seen in lower class neighbourhoods due to the transientnature of that community. It has been difficult for these communities to overcome otherbarriers, such as the vast diversity, and the constant turnover of members of lower classcommunities (Kelly et. al., 2005). With vast diversity, problems often arise due to the fact thatthere are clashes and conflicting goals amongst community members that cannot bereconciled (Schneider, 2000). Even if these barriers can be overcome, sustaining theparticipation of the neighbourhood residents has proved to be the most difficult obstacle tocommunity development. The improvement of communities requires long-term investments.It is difficult to maintain the motivation of community members when they are not seeingimmediate results (Schneider, 2000; Kelly et. al., 2005). What is important to overcoming these obstacles is recognizing that the solutionsand services that communities need must be voiced by the members of the community.Programming needs to come from within a community and then communicated to stateorganizations in order to assist those communities, not the other way around. However, dueto the social disorganization of those communities, its credibility in terms of proposingmethods that would benefit that community can be overlooked. This can create the positionof higher state organizations looking to intervene and \"create order\". All members mustremember that “community development takes time, patience and resources” (Kelly et. al.,2005, p. 317). It is vital that all participants be willing to work together if any chance ofsuccessful development is to be made possible. Farkas and Jones (2007) conducted researchon the use of intermediaries (known as Community Partners) in some crime preventionprograms. Community Partners can act the point of contact between individuals and variousorganizations and social services. These individuals can be the voice of the people – advisingcommunity members, helping to organize, and looking to maintain and improve therelationship between the local community and state agencies. This is one method throughwhich local residents can have an impact on the improvement of their community.Conclusion In order to adequately address the issue of crime in the community, the justicesystem must look at the community, not the prison industry. Research does not support theclaim that tougher penalties reduce crime (Scott & Steinberg, 2008; Cook & Roesch, 2012;Stop Violence Against Women, 2007). Some may argue that what is being proposed then isthe closing of all prison facilities since they do not reduce the crime rate. This paper does notimply that there should be an indefinite closing of all prisons. Social community developmentshould be thought of as a means of holistically approaching the problem of crime. For mostyoung offenders, there are means of dealing with less serious, non-violent offenses that donot require prison sentences. The development of the community and its citizens will help to &-)&

reduce the risk factors that cause youth and other individuals to feel like they have no optionbut to commit crime. Communities need to recognize the importance of having youth contribute to theimprovement of society in a productive manner. Developing collective efficacy, and weavingyouth and community development together to influence social change can produce lastingeffects and begin a cycle of continuous improvement of social welfare (Christens & Dolan,2011; Smith et. al., 2013). Communities need to remember that this method is not flawless;often members can be slow to get involved or participate, and sustainability can prove to be achallenge when the results are sometimes difficult to see immediately. However researchersagree that this approach poses much more potential benefits then relying on the method ofpunitive sanctions and lengthy incarceration. While this does not solve the crime problem, itdoes pose a starting point from which to analyze and combat the issue of crime in thecommunity. REFERENCESCesaroni, C. (2008). The consequences of incarceration for young offenders. In J. Roberts & M.Grossman (Eds.), Criminal Justice in Canada (4th ed.), 302–311. Canada: Nelson Education.Cook A., & Roesh, R. (2012). “Tough on crime” reforms: What psychology has to say about the recent and proposed justice policy in Canada. Canadian Psychology, 53(3), 217-225.Christens, B. D., & Dolan, T. (2011). Interweaving youth development, community development, and social change through youth organizing. Youth & Society,43(2), 528–548.Farkas, M. A., & Jones R. S., (2007) Community partners: 'Doing doors' as a community crime prevention strategy. Criminal Justice Studies, 20(3): 295-312.Government of Canada (2015). The Youth Criminal Justice Act: Summary and Background. Retrieved from: http://www.justice.gc.ca/eng/cj-jp/yj-jj/tools-outils/back-hist.html.Government of Ontario (2008). Ministry of Children and Youth Services: The Review of the Roots of Youth Violence. Retrieved from: http://www.children.gov.on.ca/htdocs/ English/topics/youthandthelaw/roots/index.aspx.Hawkins, J. D. (1999). Preventing crime and violence through communities that care. European Journal on Criminal Policy and Research, 7(4), 443-458.Kelly, K., Tullio, C., & Wanda, J. (2005). Reconsidering sustainability: Some implications for community-based crime prevention. Critical Social Policy, 25(3). 306–324.Smith, E., Osgood, D., Caldwell, L., Hynes, K, and Perkins, D. (2013). Measuring collective efficacy among children in community-based afterschool programs: Exploring pathways toward prevention and positive youth development. American Journal of Community Psychology, 52, 27-40.Scott, E. S., & Steinberg, L. (2008). Rethinking juvenile justice. Cambridge, Mass.: Harvard University Press.Schneider, S. (2000). Community Crime Prevention: A Theoretical and Empirical Overview, in Refocusing Crime Prevention!: Collective Action and the Quest for Community. University of Toronto Press, 2007.19-46.Schneider, S. (2010). Crime prevention: Theory and practice. Boca Raton, FL: CRC Press.Stop Violence Against Women. (2007). Youth crime fact sheet: Community safety & crime prevention council. Retrieved fromhttp://www.domesticviolenceinfo.ca/article/ facts-and-stats-151.asp.Thibault, E. (2014, March 18th). Federal inmate cost soars to $117gs each per year. Toronto Sun. Retrieved from: http://www.torontosun.com/2014/03/18/federal-inmate-cost- soars-to-177gs-each-per-year. &- &

Psychopathy and Masculinity Lucinda Yae-Rim RoABSTRACT The research surrounding psychopathic traits examines the definition andclassification of psychopathy, and how conceptions of the condition have beenshaped by the language used in both the legal and clinical system. Yet, there is anongoing argument about whether such personality disorder can allow one to qualifyfor the mental disorder defense as it is codified in section 16 of the Criminal Code ofCanada. The complexity in considering psychopathy under the mental disorderdefence stems from the fact that there is an absence of psychosis (i.e. hallucinationsand delusions) that accompanies the criminal motivation and behaviour ofpsychopaths, while the neurological causation of the crimes cannot be ignored. Theterm “psychopathy” and its classification have been criticized for its vaguedescription and classification as they are compatible with the behaviours of ordinaryindividuals. This leaves a high chance of providing disproportionate and inadequateassessments of psychopathic behaviour. Recent research argues that the assessmentmethod for psychopathy is highly gendered, which may also suggest that thecondition of psychopathy has a close connection with performing masculine traits.Performing masculinity is often encouraged and celebrated in popular culture and invarious institutional settings. As it is conflicting to discourage and punish thebehaviours that are also encouraged by society, this article argues that it is arbitraryto punish psychopaths when considering section 16 of the Criminal Code, as courtdecisions will not adequately reflect the attitude of the society that celebrates andlegitimizes masculine traits that are often equivalent to those traits identified inpsychopaths. This ultimately results in imbalanced and inconsistent criminaladjudication of psychopathic individuals.Image Source: <http://www.wikihow.com/Identify-a-Psychopath> &- &

Introduction Widespread usage of Hervey Cleckley’s (1988) The Mask of Sanity and Robert D.Hare’s (1980) Psychopathy Checklist-Revised in contemporary criminological research has shapedthe modern concept of psychopathy. Psychopathy is commonly described as a personalitydisorder which demonstrates emotional deficit, impulsivity, and lack of remorse, with a closerelationship to criminal conduct and high criminal recidivism (Cleckley, 1988; Hare, 1980;Kiehl et al., 2001). Even though the concept of psychopathy is already dissected into multiplecharacteristics, it has been further categorized into two separate types of psychopathy tomake the terminology compatible with the legal system. There are primary psychopaths whoare born with the condition, and there are secondary psychopaths who develop psychopathydue to environmental causes (Lee & Salekin, 2010, p. 153). Yet, the medical differentiationbetween primary psychopathy and secondary psychopathy demonstrates essentially similartraits (Lee & Salekin, 2010, p.154). This results in an ongoing debate on whether psychopathscan establish a defense on the grounds of mental disorder as outlined in section 16 of theCriminal Code of Canada which states: 16 (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong (Criminal Code, 1985, s.16) Interestingly, many of the psychopathic traits show great resemblance to bothgeneral and specific types of masculine behaviours that Western society today simultaneouslycriminalizes and celebrates as traits of success and robust mentality (Connell, 1995;Messerschmidt, 1993; Cleckley, 1988, p. 339). Moreover, the bulk of research on psychopathyis not without gendered inferences; today’s popular culture and legal doctrines take referencefrom contemporary research on psychopathy that amplifies gender responsive narratives inthe realm of popular culture and the legal system. Hence, this paper will investigate theinterrelation between the issues of gender and psychopathy to show how this permeateswithin popular culture and various ‘gendered’ institutional settings including corporations andthe criminal justice system. This paper argues that it is arbitrary to punish psychopaths whenconsidering the existence of section 16 of the Criminal Code, especially in a society thatcelebrates and legitimizes masculine traits that are congruent to psychopathic traits regardlessof gender. As per the s.16 mental disorder defence, just like someone suffering from a mentaldisorder cannot appreciate that their actions are wrong, those who display a psychopathicpersonality may not be able to understand that their actions are wrong since it appears thatsociety, encourages certain behaviours that overlap between both masculine gender identityand psychopathy.Normative Gender Order and ‘Antisocial’ Behaviour in Criminological Research Performing masculinity is often considered as a behaviour that is conducive tocriminal conduct. The search for negative attributes and connections between masculinity,crime, and the “normative gender order” has been of great interest to criminologists; malesare usually described as breadwinners who are drawn to commit crime to support their familymembers (Jefferson, 2002, p.70). Similarly, Cleckley (1988) and Hare’s (1980) psychiatricdefinition of psychopathic personality, despite the existence of noncriminal psychopaths, hasbeen considered by researchers and administrators alike as indicative of latent criminals withhigh criminal recidivism. According to Cleckley’s (1988) criteria and Hare’s (1980) Psychopathy Checklist-Revised(PCL-R), psychopaths demonstrate narcissism, emotional deficit, lack of anxiety, andsuperficial charm, which give the impression of intelligence, competence, independence, andessentially paints them as “agreeable individuals” (Cleckley, 1988, p.339; Hare, 1980, p.116; &-,&

Janvier, 2010, p.30). A sense of entitlement and frequent deceptive behaviour can also beseen in psychopathic individuals (Hare, 1980, p.116; Hare & Babiak, 2006, p.x.), andpsychopaths demonstrate such deceptive behaviour to “avoid unpleasantness or to gain otherends” (Cleckley, 1988, p.342). These psychopathic traits closely overlap with traits that malesuse to construct their masculinity. Contemporary criminological research has shown that masculinity takes differentforms that describe various male attributes. However, there is a commonality, such that allacts of manhood are aimed at “claiming privilege, eliciting defence, and resisting exploitation”(Schrock & Schwalbe, 2009, p.281). Hence, criminal behaviours of men are assumed to be, oreven justified as, a result of competition elicited by a combination of psychological and socio-economic factors. Masculinities take different forms, yet many studies focus on “hegemonicmasculinity” (cf. Connell, 1995), which expresses a set of idealized standards for men incontemporary Western industrial societies. Kimmel (2004) adds that the hegemonic ideal ofmanhood is “a man in power, a man with power, and a man of power” (p.184). Conditions ofhegemonic masculinity are comprised of “emphasized authority, control, competitiveness,independence, emotional neutrality, assertiveness, discipline, self-reliance, and physicalstrength” and the demonstration of hegemonic masculinity does not necessarily involvephysical violence (Connell, 1995, p.79). Crime may occur when males perform masculinitiesand may be used as “resources to pursue a gender strategy and construct their masculinity”(Messerschmidt, 1993, p.153). It is also important to note that such encouraged masculinebehaviours do not align with the cultural expectation that women are inherently nurturingand feminine. This results in the underestimation of criminality in female populations, as wellas labeling women as deviants if they do not fit into cultural expectations. Similarly, this mayalso indicate why fewer women are deemed to be psychopaths, as the qualities expected ofthem are much different. On the other hand, such attitudes towards the male population for demonstratingmasculine behaviour are consistent with how male psychopaths are often overrepresented incriminological research. For instance, researchers have argued that the numbers ofpsychopaths are predominantly male in comparison to females and subsequent studies showthat the population of male psychopaths are higher than female psychopaths (Rogstad andRogers, 2008, p.1481). This ultimately produces the narrative that men are inherently morecriminal and more often psychopathic than women. Some researchers have raised concernsover potential gender bias in the Psychopathy Checklist-Revised (PCL-R) measurement ofpsychopathy, as the PCL-R has never been systematically researched on women andpredominantly relied on male samples in its development (Rogstad and Rogers, 2008, p.1476).As most of the contemporary research on psychopathy and criminality is performed onconvicted male criminals, researchers run the risk of replicating the “Lombrosian fallacy”, asituation where a proper control group is not available and may produce a false conclusion inresearch (Kiehl et al., 2001). Nicholls et al. (2005) found that correlations of psychopathyamong female populations regarding risk assessment in crime and violence tend to be“modest and significant, which reflect what male psychopaths demonstrate” (p.779).Furthermore, researchers are “likely to see fewer women than men classified aspsychopathic” (Nicholls et al., 2005, p.798). Ramon (1986) discovered that in spite of thesimilar behaviours exhibited by both men and women, women are more likely to bediagnosed with a hysterical personality disorder whereas male counterparts are diagnosed aspsychopathic (p.217). Aforementioned studies on psychopathy and gender demonstrate thatthe quantitative measure of psychopaths mainly produces the gendered archetype that over-represents males in the psychopathic population, suggesting that the degree of crime severityand extent of violence committed by psychopaths from both genders should be adequatelymeasured, in order to effectively diagnose pathological behaviours without genderedpresumption. &--&

Masculinity and Psychopathy in Popular Culture Despite the reality being more complex than what is portrayed by the media, mediaserves as a significant tool to communicate and provide an understanding of the generalconsensus toward gender and sexuality, and to portray the sociocultural responses to it(Feasey, 2005, p.155). For instance, the filmmakers of The Corporation (2003), a film aboutpsychopaths in the corporate workplace, remarked in an interview that film is a powerful toolthat makes an emotional impact which activates people (as cited in Monk, Oct. 4, 2003, para.23). In popular culture, masculinity and psychopathy are identified as common denominatorsof criminality. This section discusses how masculinity and psychopathy are portrayed inrelated ways in popular culture—especially in the news and films—and how media fosters anoverrepresentation, as well as the favourable image, of male psychopaths to audiences.Furthermore, as seen from infamous social learning experiments such as the MilgramExperiment on Obedience to Authority Figures (1936) and the Asch Paradigm (1951), ordinaryindividuals can be conditioned by the dominant social perceptions. Hence, it is important toinvestigate whether the media has provided a fair representation of psychopathy to audiencesas a form of personality disorder rather than a collection of favourable traits that one mayhave. Psychopaths are typified in films as an “indestructible super-male” (Stevens, 2008,p.8), hence the majority of films present male characters as representatives of psychopaths(Leistedt & Linkowski, 2014, p.167). Famous American films including Halloween, The DarkKnight, American Psycho, Seven, and Silence of the Lambs, involve psychopathic male characterswho display significant physical or psychological dominance over victims, and who do notexhibit any sign of remorse (Martone, 2008, web.). The characters of the aforementionedmovies have traits consistent with the hegemonic ideal of manhood, as “a man in power, aman with power, and a man of power” (Kimmel, 2004, p.184). The idea of dominance is thekey to demonstrate indestructible super-male characters, which is similar to one of thenotable traits of psychopathy. Messerschmidt’s (1993) inference that crimes may be used as“resources to pursue a gender strategy and construct their masculinity” (p.153) befits thepsychopathic male character’s destructive behaviour to pursue their objectives. Similarly inthe news media, the real-life psychopathic serial killer Ted Bundy was also noted as a man“who always wanted to be in control” and frequently approached the reporters with his ratherdeceptive “the boy next door” charm, in order to present a favourable image and to gainpublic sympathy despite the horrific nature of his violent crimes (Fuller, 2006, p.144). The media’s influence on social conceptions of masculinity and criminality ispresented by Feasey’s (2005) example of police and crime drama, due to the fact that thegenre relies heavily on the theme of “crime, pursuit, and capture” while also emphasizing the“public sphere, professional roles, and the male world of work” (Feasey, 2005, p.80). The2002 television drama Spooks shows officers who are routinely forced to deceive theirpartners, friends, and family members, eventually portraying destructive behaviour as beingcommitted all in the name of the “public good” (Feasey, 2005,p. 93), as a result of society’shabitual gendering of both public and private spheres (p.154). This genre runs on a narrativeof public deception and private destruction, similar to what is described as psychopathicbehaviour in Cleckley and Hare’s clinical assessments. As identified by Hare, psychopaths areknown to be deceptive and show superficial charm, but are simultaneously self-destructivedue to their impulsive and irresponsible behaviour (Hare, 1980, p.115). This corresponds withthe characteristics of hegemonic masculinity. This paper does not intend to argue that audiences do not have the capacity tomake their own moral judgements. Rather, it strives to show that current media products arecapable of convincing viewers that destructive and deceptive behaviours can be justified aslong as it is in the line with the performance of masculinity, as seen from the examples ofSpooks and the case of Ted Bundy. For example, society’s conception of male struggles ingendered public and private spheres is used to justify the actions of officers in Spooks. &-.&

Additionally, Ted Bundy’s crimes were justified by the media as the actions of a“misunderstood young man who, but for finding the right woman who could share his pain,was a heroic figure who battled unseen demons” (Fuller, 2006, p.144). As the genderednotion of the hegemonic ideal of men is equally presented in fictional and nonfictionalsettings to depict psychopaths, it becomes unclear as to whether the viewers will see thiscriminal conduct as a result of one pursuing a gender strategy focused on overpowering otherindividuals, or as behaviour stemming from a personality disorder.Institution, Masculinity, and Psychopathy: The Corporation and The Legal System It has been previously argued in this paper that the concepts of psychopathy andmale criminality in mass media have blurred the line between crime as ‘performingmasculinity’ and ‘behaviour stemming from a personality disorder’. Hence, it is important toinvestigate how the supposedly rigid and impartial institutions—such as the legal system—perceive psychopaths in relation to masculine traits. In order to unravel the apparent genderresponsive narrative in organizational settings and the legal system towards male populationsand psychopaths, this section investigates white-collar crime, which is perceived as genderedcrime, and as the crime of so-called “successful psychopaths”. Furthermore, this sectiondiscusses how performing masculinity becomes a cause of inconsistent court decisionstowards psychopaths in the criminal justice system, for male populations are more likely to bediagnosed with psychopathy than their female counterparts. Gender focal concerns, the generalization and rationalization of criminal activitiesas socially attributed behaviours, can easily be found in the studies of corporate crimes. Forinstance, crimes committed by males are understood and justified by their socially ascribedbehaviours, such as stressed autonomy and dominance, status or achievement in the publicsphere which encourages “competitiveness, decisiveness, and risk-taking”, and promiscuousactivities (Steffensmeier et al., 2013, p.452). Steffensmeier et al. (2013) claim that the majorityof conspirators are males, and that there are only a few female conspirators, as males havemore opportunity to be involved in financial crimes (p.450). Steffensmeier et al. (2013)continue that the differentiation between illicit behaviours and masculine traits can bechallenging, as the masculine norms of “risk-taking and defying social convention” arequalities that are seen more commonly in men than women (p. 452). Additionally, suchstereotypical masculine qualities align with business fraud, engaging in risky businessarrangements, gambling, drinking, and sexual affairs (Steffensmeier et al., 2013, p.452). By thesame token, corporate psychopaths reviewed by Babiak and Hare (2006) appear attractive inlabour markets, as their deceitful behaviours may seem as traits demonstrated by charmingindividuals with leadership qualities that have “well-packaged forms of coercion, domination,and manipulation” (p.xi.). In fact, Ragatz et al. (2012) found that white-collar offenders are“outgoing, calculating, and controlling in social interactions”, resulting in higher scores on thePsychopathic Personality Inventory-Revised, another psychopathy diagnostic tool, than theircounterparts who engage in other crimes (p.990). Such similarities raise a concern that thedemonstration of masculinity in professional settings can easily be labeled as a crime ofpsychopathy, which may result in longer and harsher sentences, since the court treats suchcondition as “an aggravating rather than a mitigating factor” (Freedman & Verdun-Jones,2010, p.48). The court is intended to be one of the most impartial institutions in society ascodified in the Constitution of Canada, which is referred to as an “independent and impartialtribunal” for one to be tried (Constitution Act, 1982, s.11(d)); yet, habitual gendering of publicspheres in courts is similar to that of corporations. Levit (2001) asserts that the constructionof a rigid social order—especially in the realm of legal expression of personhood—reinforcesthe “exclusive sociopolitical obligation to engage in violence, to be the killers” (p.95), ascourts have been found to “accept and endorse the notion that men are militaristic, that theyare society’s criminals, victims, and warriors” (Levit, 2001, p.95). As both noncriminal male &-/&

and psychopathic male populations experience gendered adjudication that endorses andrecognizes masculinity linked to aggression, it becomes difficult for institutions to draw theline between the traits stemming from personality deficit, and the traits resulting fromperforming masculinity. Reinforcing ‘masculine’ persons or psychopaths as latent criminalsraises a question of whether demonstrating ‘socially encouraged behaviour’ is really‘antisocial’ conduct. Consequently, as it is assumed that both psychopathic and non-psychopathic male populations are predisposed to violence and criminality, prejudicedtreatments are inevitable as there remains difficulty in distinguishing what is ‘performingmasculinity’ from what is genuine psychopathy which can have lasting consequences ofinconsistent and inadequate adjudication in the legal system. Hence, further rigorous testsmust be conducted to clarify this conflation of performing masculinity and genuinepsychopathy, and so that because of this, psychopathy defenses in criminal courts maysucceed.Conclusion Issues of gender and psychopathy permeate popular culture and social institutions,as both the media and legal doctrines take reference from gendered contemporary researchon psychopathy. Social interpretation of gendered behaviour is continuously shifting, asgendered notions of interpreting psychosocial phenomenon are inherently conflicting; forinstance, it is unsound to encourage a characteristic which also instigates a form of socialdeviance. Conversely, scholars such as Huntley (2006) believe that the notion of manhood iscurrently being challenged by those born and raised in a world of the flourishing feministmovement (as cited in Feasey, 2008, p.154). Continuously shifting social interpretation ofmasculinity and femininity consequently affect the general public with inconsistent andunconstitutional legal doctrines and unstable policy, as specific—whether it be male orfemale—populations can face discrimination due to their assumed or encouragedcharacteristics. It has been argued in this paper that the literature on psychopathy has failedto differentiate psychopathic traits from socially encouraged masculine traits. As seen frominfamous social learning experiments such as the Milgram Experiment on Obedience to AuthorityFigures (1936) and the Asch Paradigm (1951), ordinary individuals can be conditioned by asociety that encourages masculine traits which may also be construed as instigators ofcriminal conduct. For this reason, it is also highly possible that ordinary individuals can learnto demonstrate psychopathic behaviours. As discovered throughout the research onpsychopathy, the current policy makers and researchers have chosen to focus on a smallerpopulation who have been deemed ‘psychopaths’ over deterring larger populations fromcommitting deviance in their attempts to display socially encouraged gendered traits. Thewriter does not find the idea cost-beneficial in the course of time. In order to advocatepsychopathy as a legitimate medical basis for the mental disorder defense, research onpsychopathy must be independent from gendered psychosocial inferences. REFERENCESAsch, S. E. (1956). Studies of independence and conformity: I. A minority of one against an unanimous majority. Psychological Monographs: General and Applied, 70(9), 1-70.Babiak, P., & Hare, R. D. (2006). Snakes in suits: When psychopaths go to work. New York: Regan Books.Cleckley, H. (1988). The mask of sanity: An attempt to clarify some issues about the so-called psychopathic personality (5th ed.). Augusta, Georgia: Emily Cleckley.Connell, R. (1995). Masculinities (2nd ed.), California, CA: University of California Press.Constitution Act (1982), being Schedule B to the Canada Act 1982 (UK), 1982, c 11.Criminal Code, R.S., 1985, c. C-46, s.16.Feasey, R. (2008). Masculinity and popular television. Edinburgh: Edinburgh University Press. &-0&

Freedman, L. F., & Verdun-Jones, S.N. (2010). Blaming the parts instead of the person: Understanding and applying neurobiological factors associated with psychopathy. Journal of Criminology and Criminal Justice, 52(1), 29-53.Fuller, J. R. (2006). The portrayal of extreme crime by the media: Reflecting or creating fear in serial killers. In. P. C. Shon & D. Milovanovic (Eds.), Understanding Lust Murder (pp. 139- 15). Durham, North Carolina: Carolina Academic Press.Hare, R. D. (1980) A research scale for the assessment of psychopathy in criminal populations. Personality and Individual Differences, 1(2), 111-119.Jefferson, T. (2002). Subordinating hegemonic masculinity. Theoretical Criminology, 6(1), 63-88.Kiehl, K. ., Smith, A. M., Hare, R. D., Mendrek, A., Forster, B. B., Brink, J., & Liddle, P. F. (2001). Limbic abnormalities in affective processing by criminal psychopaths as revealed by functional magnetic resonance imaging. Biological Psychiatry, 50(9), 677-684.Kimmel, M. (2004). Masculinity as homophobia: Fear, shame, and silence in the construction of gender identity. In P. Murphy (Ed.), Feminism and Masculinities (pp. 182-199). Oxford, UK: Oxford University Press.Lee, Z., & Salekin, R.T. (2010). Psychopathy in a noninstitutional sample: Differences in primary and secondary subtypes, personality disorders. Theory, Research and Treatment, 1(3), 153-169.Leistedt, S.J., & Linkowski, P. (2014). Psychopathy and the cinema: Fact or fiction? Journal of Forensic Sciences, 59(1), 167-174.Levit, N. (2001). Male prisoners: Privacy, suffering, and the legal construction of masculinity. In D.F. Sabo, T.A. Kupers, & W. J. London (Eds.), Prison masculinities. Philadelphia, PA: Temple University Press.Martone, S. (2008, October 28th). 5 of film’s most believable psychopaths. Starpulse. Retrieved Fromwww.starpulse.com/news/index.php.2008.10/29/film_s_most_believable_ psychopaths_.Messerschmidt, J. W. (1993). Masculinities and crime: Critique and reconceptualization of theory. Lanham, Maryland: Rowan & Littefield Publishers.Milgram, S. (1963). Behavioural study of obedience. Journal of Abnormal and Social Psychology, 67(4), 371-378.Monk, K. (2003). The corporation as ‘psychopath’: The film shows how a well-intentioned evil rules our lives. Vancouver Sun. Retrieved from http://search.proquest.com/docview/ 242405666?accountid=14771.Nicholls, T.L., Ogloff, J.R.P., Brink, J, & Spidel, A. 2005). Psychopathy in women: A review of its clinical usefulness for assessing risk for aggression and criminality. Behavioural Sciences and the Law, 23, 779-802.Ragatz, L L., Fremouw, W., & Baker, E. (2012). The psychological profile of white-collar offenders: Demographic, criminal thinking, psychopathic traits, and psychopathology. Criminal Justice and Behaviour, 39(7), 978-997.Ramon, S. (1986). The category of psychopathy: Its professional and social context in Britain. In P. Miller & N. Rose (Eds.), The Power of Psychiatry Cambridge: Polity Press. pp.214-240.Rogstad, J. E. & Rogers, R. (2008). Gender differences in contributions of emotion to psychopathy and antisocial personality disorder. Clinical Psychology Review, 28(8), 1472-1484Schrock, D., & Schwalbe, M. (2009). Man, masculinity and manhood acts. The Annual Review of Sociology, 35, 277-95.Steffensmeier, D., Schwartz, J., & Roche, M. (2013). Gender and twenty-first century corporate crime: Female involvement and the gender gap in Enron-era corporate frauds. American Sociological Review, 78(30) 448-476.Stevens, A. D. (2008). Psychopathy in the Media: A Content Analysis. UMI Dissertations Publishing. &-1&

Police Militarization, Civilian Securitization, and Racial Targeting in Justifiable Homicides in the U.S. Fariha KarimzadahABSTRACT This paper explores the adverse consequences of Stand YourGround legislation that grants citizens the ability to use deadly forcewith immunity against a threat of unlawful force. The law expands on theCastle Doctrine by removing the duty to retreat unless when in thehome before resorting to fatal force in self-defense. Stand Your Groundand the Castle Doctrine are two ways a homicide may be considered‘justified’ and therefore legally excusable. Both with high levels ofjustifiable homicides, the enactment of Stand Your Ground laws inMichigan and the related provision, called the Castle Doctrine, adoptedin California will be examined prior to their establishment in 1999-2001and after in 2009-2011. This paper will add on to the growing body ofscholarship on the social implications of the doctrine of justifiablehomicide by identifying who commits the justifiable homicides, thetypes of weapons used and the racial dynamics of these killings in thetwo aforementioned states. &-2&