Technologically-Facilitated Violence Against Women and Girls: If Criminal Law Can Respond, Should it?

Abstract

With growing public awareness of the ways in which technologies, in various forms, can be used to perpetrate violence against women and girls (VAWG), long-standing feminist questions about the role of criminal law in responding to VAWG have resurfaced. First, can criminal law respond? Does existing criminal law cover the kinds of abuses that are manifesting in digitally networked environments? Second, should criminal law be used to address technologically-facilitated violence against women and girls (TFVAWG)? In particular, how should feminist advocates respond to the claim that penal models may eclipse “competing models of social justice” and effectively incorporate carceral politics “into the domestic terrain in a benevolent, feminist guise”? This paper focuses on reported jurisprudence involving TFVAWG from across Canada. Part I provides an overview of TFVAWG and related Canadian criminal law cases. It introduces some technology-specific terminology and provides an overview of some of the kinds of behaviours and consequences involved as well as the offences prosecuted in the cases we reviewed. Part II addresses the wrongfulness of TFVAWG, why it merits criminal censure, and the extent to which the offences being charged in the identified cases capture the essence of the wrong in issue. Part III returns to some of the cases outlined in Part I in order to explore three ways in which survivor-centred outcomes can be compromised in TFVAWG cases: the sometimes-competing assessments of concepts such as “harm”, “violence” and “injury”; implicit and explicit judgments about which victims are deserving of the criminal law’s protection; and inadequate protection of women’s and girls’ privacy, dignity and sexual integrity in public places.