Therapeutic jurisprudence : a just framework for Indigenous victim/survivors of sexual violence?

Abstract

This thesis constitutes a critical examination of therapeutic jurisprudence, which was developed by David Wexler and Bruce Winick in the late twentieth century. Therapeutic jurisprudence is interested in the wellbeing of those who come before the law, and purports to contribute to the development, implementation and reform of the law in different areas, and for multiple legal participants.

I am predisposed to therapeutic jurisprudence, but argue that there is a core problem, namely, that it does not answer the question: therapeutic for whom? I test therapeutic jurisprudence in accordance with a tough case, asking whether it can frame a just criminal legal response for adult Indigenous women who have experienced sexual violence, particularly in an intra-cultural context. I assess therapeutic jurisprudence in accordance with the innovative vision of justice explored by Barbara Hudson, for the reason that Hudson s principles offer an inclusive and differentiated form of justice, emphasising just process and outcomes.

I argue that, in emphasising wellbeing, therapeutic jurisprudence may offer identified, practical ways to improve the experience of the legal process for Indigenous victim/survivors, and especially the sexual assault trial, a traumatic stage of the process not addressed in many other innovative justice responses. I argue that this is a valuable contribution, one that has potential to address low rates of legal engagement in this area, and the current deleterious effects of criminal legal interactions on most victim/survivors of sexual violence.

However, in assessing therapeutic jurisprudence against Hudson s principles, and recognising aspirations of victim/survivors, I find a shortcoming in terms of its potential to deliver justice to victim/survivors. I argue that the claims that therapeutic jurisprudence makes about victim/survivors are overstated, and that this finding has implications beyond the case study considered in this thesis. I take particular issue with the curtailed normative framework of therapeutic jurisprudence, and its tendency to avoid addressing situations where interests conflict, rather than converge. I argue the time has come to develop the theory to address these matters, and encourage further exploration of an innovative vision of justice, such as Hudson s, to inform a new normative framework.