This talk is based on a recent article by the presenter that examines the treatment of gender related persecution claims in Canadian refugee law. The article examines cases involving domestic violence persecution, analyzed through a comparison with cases involving forced sterilization and genital cutting persecution. Surveying 645 reported decisions in total, the article argues that Canadianadjudicators adopt different methods of analysis in cases involving domestic violence, as compared with cases involving other claims. That is, adjudicators generally did not recognize domestic violence as a rights violation in itself, but instead, demonstrated a predisposition towards finding domestic violence persecution in cultural difference. Put another way, adjudicators generally did not recognize domestic violence claimants as victims of persecutory practices, but rather, as victims of persecutory cultures. The article suggests this approach establishes incorrect criteria by which to evaluate domestic violence claims, for two main reasons. First, it erroneously depicts domestic violence as a product of culture, and in so doing, fails to recognize the complex factors besides culture that make women vulnerable to persecution in domestic settings. Second, this approach constructs non-Western culture as a place where domestic violence occurs because of the “inherent” vulnerability of women. As a result, women who cannot authentically narrate their experience of violence through the script of vulnerability, or who cannot present as “victims of culture”, face legal and conceptual barriers in proving their claims. The article further posits that the adjudicative tendency to locate domestic violence persecution in cultural difference does more than erect barriers for refugee women. It also reflects a defensive anxiety, and operates as a protective device that suppresses the commonality of domestic violence across cultures to elide its domestic prevalence. The article suggests this approach replicates problematic assumptions about gender violence and gender difference that make it harder to address domestic violence both at home and abroad.
Efrat Arbel holds a doctorate from Harvard Law School, and is a postdoctoral fellow at the University of British Columbia Faculty of Law. Her research centers on Canadian migration law, prison law, and aboriginal law. Her current research focuses on the Canada-US border as a site through which to study the relationship between migration, criminality, and constitutional rights. As part of this research, she is an Academic Visitor at the Oxford Centre for Criminology.