Karla Homolka Case

Investigating Gender Bias and Sentencing Disparity: A Case Study Analysis of the Paul Bernardo - Karla Homolka Case by Kathrine Lorraine Leafioor A thesis submitted to the Fnculty of Gradunte Studies and Research in partial fulfillment of the requirements for the degree of Master of Arts Department of Law Carleton University Ottawa, Ontario May, 1997 @Copyright 1997, Kathrine Lorraine Leafloor National Library Bibliothèque nationale 1*1 of Canada du Canada Acquisitions and Acquisitions et Bibliogaphic Services services bibliographiques 395 Wellington Street 395. rue Wellington Ottawa ON K1A ON4 OttawaON KtAON4 Canada Canada The author has granted a non- L'auteur a accordé une licence non exclusive licence allowing the exclusive permettant a la National Library of Canada to Bibliothèque nationale du Canada de reproduce, loa.distribute or sell reproduire, prêter, distribuer ou copies of this thesis in microform, vendre des copies de cette thèse sous paper or electronic formats. la fome de microfiche/m de reproduction sur papier ou sur format électronique. The author retains ownership of the L'auteur conserve la propriété du copyright in this thesis. Neither the droit d'auteur qui protège cette thèse. thesis nor substantial extracts fiom it Ni la thèse ni des extraits substantiels may be printed or othewise de celle-ci ne doivent être imprimés reproduced without the author's ou autrement reproduits sans son permission. autorisation. Abstract This thesis is a case study anaiysis of the Paul Bernardo - Karla Homolka case. It explores the effect gender has upon the sentences individuals receive from the Canadian justice system by attempting to establish the significance of gender in the Bernardo-Homolka case, thereby corroborating the existence of gender bias in Canadian courts. Test theones, developed fiom a review of academic viewpoints developed to explain the sentences women receive fiom the legal system, are utilized as lenses through which a case study anaiysis on the available data about women's historical experiences and Karla Homolka's experience is conducted. It concludes that gender was found to have a signifiant impact upon Karla Homolka's sentence, but that problems encountered in the police investigation and the need for her cooperation to successfùlly prosecute Paul Bemardo superseded its importance. This thesis replicates past studies, it demonstrates gender's si~cance,but is not able to provide irrefutable proof that it biases sentencing outcomes. Acknowledgments There are many people whom I wish to acknowledge and thank for their contributions to the realization of this thesis. 1 would like to fist thank rny thesis supervisor Iane Dickson-Gilmore, whose advice, effort, and unwavering support helped to make this thesis possible. Her respective expertise and guidance were invaluable to me throughout the course of the Masters' program and the development of this thesis. 1 am grateful for her faith in me and for her friendship. I would like to thank my farnily who have always been, and continue to be, a constant source of love and unconditional suppon for any endeavor 1 undertake. Thank you for believing in my abilities. Your love and encouragement have been instrumental in the completion of this thesis. Finally, I would like to thank my dearest and most cherished friends, you know who you are, this thesis could not have been realized without you. TABLE OF CONTENTS Cl~spterOne: Introduction Bac kground Statement of Research Question Organization of Thesis Endnotes Chapter Two: Methodological Considerations Introduction Issues Surrounding the Study of Gender Bias i): Legal Research Versus Social Science ii): The Study of Gender Bias - Problems and Considerations Case Study Outline i): The Empincal Data ii): The Development of Test Theones iii): Analysis of the Case of Paul Bemardo and Karla Homolka Endnotes Chapter Three: Theoretical Perspectives on Gender and Sentencing Introduction Three Characterizations of the Fernale Offender Development of Schools of Thought / Test Theories Research Review Conclusion Endnotes Cliapter Four: Historical Background on Women and Sentencing in the Late Nineteenth Century in Canada Introduction Infanticide 1800s Rape Laws and the Regulation of Sexuality Prostitution Domestic Violence Femde Offenders and the Legal System Conclusion Endnotes Chapter Five: A Review of the Paul Bernardo - Karla Homolka Case Introduction Summary of Events Conclusion Endnotes Chapter Six: An Analysis of the Case of Paul Bemardo an4 d Karla Homolka Introduction 162 Gender as an Influentid Factor 166 Other ReIated InfluentiaI Factors 183 Conclusion 189 Endnotes 191 Chapter Seven: Conclusion Introduction Potential Areas for Research Possible Areas for Refonn Conclusion vii Endnotes Bibliography CWTER ONE: INTRODUCTION "Why does the assertion that there is gender bias in the law and the legal system create such controversy?"' Karla Homolka began qualifjmg for day-passes from Kingston's Prison for Women on Ianuary 6, 1997 and is eligible for parole in a few months time. Her ex-husband, Paul Bemardo, continues to serve a life sentence for murder as well as an indefinite sentence as a "dangerous offender" in a Kingston penitentiary - two radically different outcomes for two individuals that the evidence indicates were equally involved in the heinous crimes that were comrnitted against Tarnrny Homolka, Leslie MahafQ and Kristen French. Although Paul Bemardo was also found guilty of a multitude of sema1 assaults, it remains puzzling and to some incomprehensible, that his ex-wife may lose only a maximum of twelve years from her life after being involved in the extinguishing of the lives of three young wornen. The events that are occumng in the aftermath of one of the largest and most controversial criminal cases in Canada perpetuate the persistent perceptions by the public and in the media about the character and impartiality of the justice system. The nature of the case, and the controversies that continue to surround it, have prompted the publishing of several books about the case, two govemental reviews critiquing the investigations and the utilization of plea-bargains, and a myriad of newspaper articles and television reports which continue to make their presence known to 1 the public, even though the case concluded in eady November of 1995.3 Why does the Paul Bernardo-Karla Hornolka case continue to rnerit such attention? Perhaps this case has attained such public attention and outrage because of the manner in which disparate sentences are often portrayed in the media. Such portrayals usually focus on selective information on specific cases; for example, the rnitigating factors in judges' decisions tend to be missing fiom media reports. Aside from the obvious heinous nature of the crimes, the most cornmon example stirring public outrage and debate in this case is the portrayal of women as singled out by the system specifically due to gendeS, Le.; that the criminai justice system is biased or sexist. The most obvious cases which in the past have highlighted this sexism include The Attornev General of Canada v. Lavell (3974)s and the Lovelace case 11980)6.In these two cases, Canadian courts mled that First Nations women who rnarried non-Aboriginals lost their status, but First Nations men who did so kept their status (in fact status was extended to include their non-Aboriginal wives). Lavell appealed to the Supreme Court of Canada, but the decision went against her.' Lovelace took her grievance to the United Nations Human Rights Cornmittee who intervened on her beh* resulting in Bill C-31'. Bill C-3 1 was designed to enable First Nations women who had lost their stahis to regain their status as Indians and as band members. Although these two cases were embedded in issues of race and specific governmental legislation, such as the Indian Act, they are poignant examples of disparity in the courts on the basis of gender. On the other hand are cases such as the recent R v. Theberneg, wherein Mr. Justice Jean Bienvenue made derogatory remarks about women, comparing them to Nazis''. There was an inquiry into Bienvenue's conduct and he voluntarily stepped down fiom his judicid position." This example serves as an illustration of the seemingly apparent existence of a "fine line" which demarcates the limits by which judges' personal views on gender and race are ailowed to infringe upon the decisions made within the cnminal justice system. Perhaps this case has becorne a focal point of interest due to the increasing amount of work that is being undertaken to study gender bias, also known as sex discrimination and semai subordinati~n.'~.In order to begin a discussion about the issues surrounding gender and sentencing in the criminal justice system, it is necessary to define gender bias. Gender bias includes the exclusion of women because they are women, the improper use of incorrect and unchosen stereotypes, the use of double standards, the use of a male-defined nom, the failure to incorporate or be sensitive to the perspectives of women, being gender blind to gender specific realities, and using sexist language13. The following working definition of gender bias is utilizeed in this thesis. One of the reasons it was selected is because it is currently in widespread use14. The popularity of this definition is possibly due to its very straightforward operationaikation of the terni, which renders it quite user-friendly for researcher: "Gender bias refers to attitudes and behaviors on the part of the participants in the justice system that are based on or refIect: (1) sex stereotypes about the proper "roles" and "true natures" of women and men; (2) cultural assumptions about the relative worth of men and wornen; and (3) myths and misconceptions about the social and econornic realities encountered by both sexes. Gender bias is also found in (4) behaviors that impose a greater burden on one sex than on the other."15 This definition was chosen because it is open and flexible.

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