Amanda Wilson, “Putting Therapeutic Jurisprudence on Edge: A Gendered Engagement”

Working Abstract

In the criminal justice system, therapeutic jurisprudence is transforming the way justice is “done” by providing a framework for innovative, non-adversarial practical pursuits such as problem-solving courts. Drug courts are one manifestation of therapeutic jurisprudence in the problem-solving court arena. They exist in many criminal justice systems worldwide and their numbers continue to expand. The claims that proponents of therapeutic jurisprudence make – such as focussing on promoting individual well-being and an ethic of care – might appear to make it a good fit for women offenders. Furthermore, since women offenders frequently have compounded drug and mental health issues, drug courts as a vehicle for therapeutic jurisprudence might appear very promising for women. Women offenders are on the margins of the criminal justice system and Indigenous women offenders even more so. However, very little consideration has been given to how gender is understood in contexts that apply therapeutic jurisprudence. This article reports on preliminary findings from a larger comparative study of drug courts. The findings from observations carried out at two Canadian drug courts and one Australian drug court point to the courts being both gendered and gendering and that in response to this, women participants variously conform to, resist and negotiate the constructions of gender placed on them. The article goes on to discuss the effects of these heterogeneous responses to gendering and the impact these have on the capacity to realise normative goals of therapeutic jurisprudence.

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