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Therapeutic Jurisprudence: a Just Framework for Indigenous Victim/Survivors of Sexual Violence?

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Therapeutic Jurisprudence: a Just Framework for Indigenous Victim/Survivors of Sexual Violence? Therapeutic jurisprudence: A just framework for Indigenous victim/survivors of sexual violence? Erin S Mackay A thesis in fulfilment of the requirements for the degree of Doctor of Philosophy School of Law Faculty of Law October 2013 ‗I hereby declare that this submission is my own work and to the best of my knowledge it contains no materials previously published or written by another person, or substantial proportions of material which have been accepted for the award of any other degree or diploma at UNSW or any other educational institution, except where due acknowledgement is made in the thesis. Any contribution made to the research by others, with whom I have worked at UNSW or elsewhere, is explicitly acknowledged in the thesis. I also declare that the intellectual content of this thesis is the product of my own work, except to the extent that assistance from others in the project's design and conception or in style, presentation and linguistic expression is acknowledged.‘ Signed ................................................................................................ Date ................................................................................................... ‗I hereby grant the University of New South Wales or its agents the right to archive and to make available my thesis or dissertation in whole or part in the University libraries in all forms of media, now or here after known, subject to the provisions of the Copyright Act 1968. I retain all proprietary rights, such as patent rights. I also retain the right to use in future works (such as articles or books) all or part of this thesis or dissertation. I also authorise University Microfilms to use the 350 word abstract of my thesis in Dissertation Abstract International (this is applicable to doctoral theses only). I have either used no substantial portions of copyright material in my thesis or I have obtained permission to use copyright material; where permission has not been granted I have applied/will apply for a partial restriction of the digital copy of my thesis or dissertation.' Signed ……………………………………………....................... Date ……………………………………………........................... 2 ‗I certify that the Library deposit digital copy is a direct equivalent of the final officially approved version of my thesis. No emendation of content has occurred and if there are any minor variations in formatting, they are the result of the conversion to digital format.‘ Signed ……………………………………………........................... Date ……………………………………………........................... Therapeutic Jurisprudence: An Appropriate Framework for Law Reform in Matters Involving Indigenous Women and Sexual Violence?‘, International Congress on Law and Mental Health, Amsterdam (17 July 2013) ‗Therapeutic Jurisprudence Australian Indigenous Women and Sexual Violence: A Case Study‘ International Network of Therapeutic Jurisprudence, University of Puerto Rico (6 March 2012) ‗Therapeutic Jurisprudence: Serving the Interests of Indigenous Women who Have Experienced Sexual Violence?‘ Centre for Legal Governance, Macquarie University (12 October 2011) 3 I have been so supported throughout this process. Professor Julie Stubbs has been an exceptional supervisor, gently providing useful and nuanced advice at each interval, and consistently encouraging me to push my thinking further. An unfortunate campus robbery and its effects in 2011 very nearly derailed my candidature, and the fact that this thesis is now complete is testament to Julie. The input of Dr Ben Golder, first as a panel member, and then as a supervisor in the latter part of the process, also has been invaluable. Ben‘s timely and insightful comments have been essential for my thesis to arrive at this point. I was extremely saddened by the death of Professor Sandra Egger earlier this year. I thank her for her contributions as supervisor, and reflect on our discussions with gratitude. Members of the UNSW Law School have supported me in many ways. My travel to international conferences was funded by the Law School. Professor Megan Davis encouraged me so warmly to take up this subject some years ago, and I give her and Dr Kyllie Cripps many thanks for their comments on the first chapters on Indigenous women. Professor Janet Chan, Dr Lisa Toohey and Robert Shelly were valued review panel members. I also acknowledge the support of Professor David Dixon, Professor Theunis Roux and Jenny Jarrett after the robbery, and am particularly indebted to Jenny for her perpetual patience and willingness to help with any university administrative task. I thoroughly enjoyed my period as scholar-in-residence at the University of Puerto Rico with Professor David Wexler in 2012, and the time spent with David and Gigi in old San Juan. David is a compassionate and generous lawyer who warmly invited me to critically engage with his ideas, and I deeply appreciate this, together with his immediate email responses from the other side of the globe, his invitations to therapeutic jurisprudence conferences, and his continuing efforts to connect me with members of his international community. It was also a delight to meet Swedish law academics Dr Pernilla Leviner and Dr Moa Kindstrom-Dahlin at my first therapeutic jurisprudence conference in Berlin in 2011, and reuniting at the 2013 Amsterdam conference was joyfully productive. I have benefited from all our comparative discussions, and look forward to our future meetings. Of course, thanks are due to many others too. Professor David Weisbrot, for his warm support of my initial application, and his invitation to present at Macquarie University during my candidature. Tom, for being so consistently wise and supportive. Siobhan, Rian, Chris and Linda, for being there always. The staff at Gertrude & Alice, for the wonderful chai tea and uplifting working environment at my local ‗office‘. Rebecca Welsh, Louise Buckingham, Maggie Hall and Tamara Tulich for being such fabulous thesis buddies. And Frances Foster-Thorpe, I will always cherish our lively and supportive discussions about the content of this thesis, and the process of doing a PhD! Last but not least, thank you to the women who have contributed their voices to my thesis—I don‘t know all your names, but I thank you for sharing your experiences. I‘ve listened to your stories, and share your determination to realise justice. 4 TABLE OF CONTENTS PRESENTATION LIST ..................................................................................................... 3 ACKNOWLEDGMENTS .................................................................................................. 4 CHAPTER ONE: INTRODUCTION ................................................................................... 9 I THESIS BACKGROUND ............................................................................................................................................ 9 II RESEARCH QUESTION .......................................................................................................................................... 10 III METHODOLOGY .................................................................................................................................................... 10 IV INTRODUCTION TO THE THERAPEUTIC JURISPRUDENCE LITERATURE ............................................................ 13 V INDIGENOUS VICTIM/SURVIVORS: SOME CONTEXT ............................................................................................ 19 A VICTIM/SURVIVORS ............................................................................................................................................. 19 B INDIGENOUS VICTIM/SURVIVORS ........................................................................................................................ 21 V IMPORTANCE OF MY CASE STUDY AND JUSTICE ................................................................................................. 24 VI CASE STUDY DEFINITIONS ................................................................................................................................... 30 A INDIGENOUS ......................................................................................................................................................... 30 B WOMEN ................................................................................................................................................................ 31 C SEXUAL VIOLENCE ................................................................................................................................................ 32 VII CHAPTER OUTLINES ............................................................................................................................................ 36 CHAPTER TWO: THERAPEUTIC JURISPRUDENCE ......................................................... 40 I CHAPTER OVERVIEW ........................................................................................................................................... 40 II THERAPEUTIC JURISPRUDENCE, ACCORDING TO ITS FOUNDERS ...................................................................... 41 A DEFINITION AND CENTRAL CLAIMS .................................................................................................................... 42 5 B ‘THERAPEUTIC’: MEANING AND CRITIQUE .......................................................................................................... 44 C ‘JURISPRUDENCE’: MEANING AND CRITIQUE ......................................................................................................
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