McGill Law Journal
Refugee law; Culture; Gender; Canada
This article examines Canadian refugee law cases involving domestic violence, analyzed through a comparison with cases involving forced sterilization and genital cutting. Surveying 645 reported decisions, it suggests that Canadian adjudicators generally adopted different methods of analysis in refugee cases involving domestic violence, as compared with these other claims. The article argues that Canadian adjudicators rarely recognized domestic violence as a rights violation in itself but, instead, demonstrated a general predisposition toward finding domestic violence persecution in cultural difference. That is, adjudicators tended to recognize domestic violence claimants not as victims of persecutory practices but rather as victims of persecutory cultures. The article suggests that this approach establishes incorrect criteria by which to evaluate domestic violence claims, for two main reasons. First, this approach does not accord due weight to complex factors besides culture that make women vulnerable to persecution in domestic settings. Second, this approach erects legal and conceptual barriers for women who cannot authentically narrate their experience through the script of cultural vulnerability or who cannot present as “victims of culture”. The article posits that characterizing the violence suffered by refugee women as a product of culture does more than erect barriers for refugee claimants; it also operates as a protective device that suppresses the commonality of domestic violence across cultures and elides its domestic prevalence. The article concludes by suggesting that this approach replicates problematic assumptions about gender violence and gender difference that make it harder to address domestic violence both abroad and at home.
Efrat Arbel, "The Culture of Rights Protection in Canadian Refugee Law: Examining the Domestic Violence Cases" (2013) 58:3 McGill LJ 729.