V. A Framework for Inclusion of Violence against Women Issues in Law School Curricula

V. A Framework for Inclusion of Violence against Women Issues in Law School Curricula2017-03-03T18:35:39+00:00

A. Introduction

Based on the research and experience described previously and on the contributions of members of the Advisory Group and student focus groups, the LCO has developed a framework for the inclusion of issues relating to violence against women in the curricula of Ontario law schools. We have deliberately chosen a framework approach rather than developing a specific curriculum in order to allow greatest flexibility and to recognize the need for curriculum to evolve to meet changing circumstances. The framework is composed of the following elements:

  1. principles governing its formation;
  2. the objectives to be satisfied by including these issues in the curriculum;
  3. core competencies to be developed by students;
  4. curriculum content;
  5. course formats; and
  6. pedagogical techniques.

In addition, the framework includes examples of curriculum design for the following three courses: family, criminal, and legal ethics and professionalism.

 

B. Principles Governing the Framework’s Formation

Throughout this initiative, we have worked from the principles set out by the Federation of Law Societies of Canada in its work on the Canadian common law degree, as well as by the other studies referenced above in this report. In particular, we have been mindful of the following:

The focus needs to be on learning outcomes and not necessarily or solely on the specific context to achieve those outcomes.

  • Individual law schools need to determine how their graduates accomplish the required competencies.
  • The principle of academic freedom and law schools’ own expectations about course content and teaching apply.
  • Law students need to learn about lawyering as well as about “the law”.
  • Students learn best when provided with an array of learning methods and formats and when they can apply doctrinal learning to real life situations.

C. Objectives to be Satisfied

At the macro-level, curriculum on violence against women has the objective of preparing students to enter the profession of law with the following characteristics:

  • a comprehensive understanding of the issue of violence against women and its implications across all areas of the practice of law;
  • the skills needed to competently manage files involving violence against women issues;
  • the knowledge required to play a role in working to shape social policy responses to violence against women; and
  • the knowledge required to play a role as members of their professional community in bringing an end to violence against women.

 

D. Core Competencies

1. Introduction

To assist us in developing model course components at the micro-level, we first established a set of core competencies for law students with respect to their learning about violence against women. To do that, we turned to existing work in Ontario and elsewhere.

Over the past several years, the Ontario Women’s Directorate has funded approximately 20 domestic violence training and education projects. These have been aimed at many sectors, including health, education, justice and social services.[31] Within the justice sector, training and education has been developed for the following groups:

  • judges, through the National Judicial Institute[32]
  • lawyers, through Legal Aid Ontario[33]
  • Ministry of Community and Safety and Correctional Services staff,[34] and
  • training of Crowns by the Ministry of the Attorney General.[35]

Each project has developed core competencies that are relevant to its sector and that have been helpful as we have identified the competencies for education for law students.

 

2. Competencies

Knowledge

Law students should develop the following competencies with respect to their knowledge of issues around violence against women:

  • familiarity with the dynamics and types of abuse, including how, when and where it can happen, and ability to recognize some of its indicators in clients and files;
  • an understanding of the differing ways in which violence against women is manifest in different communities[36];
  • an understanding of the impact of violence against women on both women and children;
  • an understanding of the relationship between violence and various legal issues and areas of law;
  • an understanding of the impact of violence on a victim’s ability to interact with legal systems; and
  • familiarity with characteristics of abusers and how these affect the abuser’s relationship with legal issues, areas of law and legal systems.

Best practices

Law students should develop the following competencies with respect to implementing best practices in relation to violence against women:

  • establish safe environments for all clients to allow disclosure of abuse where appropriate;
  • create a professional relationship of trust with clients once abuse has been disclosed;
  • create a physical and emotional safety plan for clients as well as for herself or himself and the law practice generally; and
  • integrate knowledge of abuse into how he or she handles the case/file.

Skills

Law students should develop the skills to allow them to do the following in their cases with respect to violence against women:

  • screen for violence against women/domestic violence;
  • be aware of violence against women risk factors;
  • know when to refer for a full assessment;
  • be able to respond appropriately to a disclosure of abuse or violence;
  • make effective referrals to community services;
  • conduct an effective interview with a client who has experienced abuse;
  • conduct an effective interview with a client who has perpetrated abuse;
  • manage files involving violence against women appropriately; and
  • manage the impact of this work on themselves.

Professional role(s)

Law students should develop competences that are necessary for them when they deal with violence against women in the following roles:

  • legal counsellors to their clients;
  • officers of the court; and
  • members of a professional community.

Ethics

Law students should learn how to ensure the following ethical conduct in relation to violence against women:

  • identify and respond to violence against women regardless of their professional role or area of law practised;
  • address ethical issues that arise when they suspect violence against women has occurred or is occurring;
  • understand the ethical issues involved in representing victims/alleged victims and abusers/alleged abusers; and
  • understand the issues related to children in a family in which violence against women has or is occurring.

 

E. Curriculum Content

Using the core competencies as a guide, we suggest the following proposed topics about violence against women that could be included in law school courses. While the actual teaching of this material will be a decision made by individual faculties of law and individual professors, it seems important that the first two topics below form an introduction to the other topics and that as many students as possible be exposed to these two topics, even if they do not pursue this area of study any further.

1. Setting the foundational context

  • Explain why violence against women requires recognition in the curriculum.
  • Establish an approach based on the intersectionality of factors such as culture, race, gender, ability, religion, age, sexual orientation, citizenship status, geographic location and other characteristics reflective of Canada’s pluralism and diversity.
  • Explain the importance of a gendered analysis.
  • Introduce practices in other jurisdictions.

2. What is violence against women?

  • Provide definitions of violence against women.
  • Explain and discuss how violence against women occurs in the public sphere.
  • Explain and discuss how violence against women occurs within the family.
  • Explain and discuss different ways the law addresses violence against women.
  • Briefly discuss what “violence against women” means in other jurisdictions.

3. Family law

  • Establish the statutory framework.
  • Identify provisions and case law relating to custody and access.
  • Identify the law governing child protection.
  • Explain and discuss the impact of violence against women on family court proceedings.
  • Explain and discuss issues relevant to representing abusers/alleged abusers.
  • Explain and discuss other processes for addressing the consequences of violence against women (e.g., mediation).
  • Explain the relationship between Family and Criminal Court and the Domestic Violence Court.

4. Criminal law

  • Provide an overview of criminal law and violence against women.
  • Identify key issues in domestic violence (e.g., mandatory charging, victim response to charges/prosecution, bail) and sexual violence (e.g., production of third party records, consent, trafficking of women and children).
  • Explain and discuss the role of the “victim”.
  • Explain and discuss issues involved in representing persons accused of committing violence against women.
  • Explain plea bargaining in the context of violence against women.
  • Identify evidentiary issues relevant to violence against women.
  • Identify and discuss sentencing options.
  • Identify and discuss restorative justice processes.

5. Immigration and refugee law

  • Establish the statutory and regulatory framework for immigration and refugee law.
  • Explain and discuss the difference and similarity of and relationship between individual and state violence.
  • Explain and discuss the role of violence in the refugee claimant’s home country.
  • How violence against women might occur, responses to it and issues that arise among immigrant communities in Canada.

6. Social welfare law

  • Explain and discuss social assistance issues for victims of violence against women.
  • Explain and discuss housing issues for victims of violence against women.
  • Explain and discuss disability pensions for victims of violence against women.

7. Tort Law

  • Explain the use of tort law in cases of sexual violence, including institutional cases.
  • Explain a cost/benefit analysis of tort law in domestic violence cases.
  • Explain and discuss challenges and barriers to the use of tort law in domestic violence cases.

8. International Law

  • Identify international instruments that could be used to address violence against women (e.g., Committee on the Elimination of Discrimination Against Women, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children [the Palermo Protocol], Inter-American Commission on Human Rights, International Court of Justice).
  • Explain and discuss the use of these instruments to address violence against women in Canada, particularly violence against Aboriginal women, and including trafficking of women and children.
  • Explain and discuss the challenges and barriers to the use of these instruments.

9. Quasi-legal remedies

  • Identify the applicability of human rights codes and commissions.
  • Identify the applicability of administrative law processes and remedies.
  • Identify the applicability of workplace safety legislation (e.g., Part III.0.1 of the Occupational Health and Safety Act).
  • Identify the applicability of the Criminal Injuries Compensation Board.
  • Identify the applicability of proceedings governed by professional colleges.

10. Alternative dispute resolution

  • Identify and discuss the following forms of dispute resolution in cases of violence against women, including when appropriate, advantages and disadvantages, and special issues to be noted:
    o mediation;
    o arbitration;
    o collaborative family law; and
    o plea bargaining.

11. Public Policy

  • Discuss working with government to effect violence against women policy reform.
  • Explain and discuss related non-legal issues that require policy attention (e.g., housing, income security).
  • Explain and discuss issues that arise in supporting women who do not want to engage with the law.
  • Explain and discuss the role of the community in preventing and responding to violence against women (e.g., initiatives such as “Neighbours, Friends and Families”[37]).

12. Other areas of law and violence against women

  • Explain the following in courses such as real estate, contracts, wills and estates, and administrative law:
    o when violence against women can arise;
    o how to recognize it; and
    o how to handle it.

13. Ethics, professionalism and practice considerations

  • Explain the importance of being ready for the possibility of violence against women and/or domestic violence with any client.
  • Explain how to screen for violence against women/domestic violence without “looking” for it.
  • Explain the duty to report and circumstances when solicitor/client privilege may be breached.
  • Explain the Crown and police duty to report to child protection authorities.
  • Identify and discuss practice tips for working with an abuser as well as a survivor.
  • Identify and discuss special conflict of interest/confidentiality considerations.
  • Identify issues relating to file management.
  • Identify the need for and issues related to safety planning for the lawyer and her/his staff.

 

F. Course Formats

There are a number of possible approaches to the integration of violence against women materials in law school curricula. Each carries with it some advantages and some disadvantages. The approaches should be assessed against the objectives of ensuring that all students are provided with basic information about violence against women in the context of their roles as lawyers. Each law school has its own curriculum approval process. Ensuring that all students are provided with some basic information (perhaps through the modules addressing “Setting the Foundational Context” and “What is Violence against Women?”) requires a formal process to create, for example, an intensive week dealing with the issues or inclusion of the ethical issues in an ethical lawyering course. To provide a more in depth understanding of the subject matter, individual professors could incorporate relevant issues into existing courses; however, this alone does not ensure that all students have some exposure to the issues. Accordingly, to be effective, law schools need to take a systemic approach to how they will include violence against women issues in the curriculum, as well as ensure that professors are knowledgeable in the issues and supported in their teaching and interaction with students. There are a number of ways to include these issues in the curriculum, including the following:

  • The curriculum process and/or individual faculty members could embed reference to the issue in every first year course.
  • The law school could create a separate, mandatory first year course on violence against women.
  • The curriculum process and/or individual professors could incorporate the topic into existing mandatory first year perspective courses such as some Canadian faculties of law already offer.
  • The curriculum process could create a mandatory intensive week or month-long curriculum on issues relating to violence against women.
  • The curriculum process and/or individual professors could incorporate the issues into upper year courses.
  • The curriculum process could create specialized courses for students interested in a more in-depth examination of the topic.

This initiative’s Advisory Group and students in a series of focus groups held at a number of Ontario law schools were asked how to incorporate violence against women issues into the law school curriculum (see Appendix B for the notes from the student focus groups). There was no consensus in the responses, although certain themes emerged from both the Advisory Group and the students.

There was no doubt that people felt strongly that all law students should learn about this topic; however, there were different opinions about the quality of both learning and teaching when material is mandatory. Some students, in particular, felt strongly that mandatory courses would be treated with disrespect by their colleagues who did not see violence against women as an important part of their law school learning. Some faculty were concerned that some of their colleagues might interpret mandatory curriculum as an infringement of their academic freedom.

Most advisors and students felt that some material should be introduced in first year courses, since this curriculum is mandatory for all students and that specialized upper year courses would also be helpful for those who have an interest in the topic.

The concept of creating a teaching resource for professors was also seen as a positive approach. This would provide a valuable resource for professors who do not have a background in this area but who are interested in incorporating relevant case law, academic articles and other sources and approaches into existing courses. As noted earlier in this report, it might be possible for existing internal teaching clinics to incorporate violence against women as an issue.

There was a generally positive reaction to the idea of incorporating some violence against women content into ethics and professionalism courses so that law students would realize from the beginning of their careers that there is an ethical and professional duty to be aware of this issue regardless of their area of practice.

Ultimately, it seems that a mixed approach may be best, for example as follows:

  • incorporating violence against women issues into first year courses
  • expanding on already existing upper year specialty courses
  • developing a teaching resource touching on all major areas of law to support professors in incorporating violence against women issues into existing curricula
  • including discussions about violence against women into ethics and professionalism courses.

 

G. Pedagogical Techniques

In discussions with faculty, practitioners and students, the following ideas, some of which overlap with the ABA ideas referred to, were generated about how to teach this issue effectively:

  • clinical placements
  • case and statute law
  • fact scenarios/case studies
  • skills development (e.g, interviewing techniques)
  • guest speakers
  • community resources
  • ethical issues and questions posed throughout a course
  • role playing
  • films and videos
  • lectures
  • reading resource list
  • web-based interactive techniques
  • digital sources of information
  • critical journaling and reflective papers.

One model considered was that of the domestic violence courses offered to judges by the National Judicial Institute. These courses are taught from a skills development/trial management perspective. They are intensive three to four day courses, with a relatively small group of judges (30 to 40) working together throughout the course. The judges work with a single case study and engage with the family at various stages throughout the court (family or criminal) process. Videotapes with actors playing the parts of the man and woman and lawyers and judges playing the parts of lawyers and judges show specific proceedings and are interspersed with live lectures, comments from a panel of experts, and small group work.

General response to this teaching method has been very positive. It could be considered in the law school context; however, it is likely to be most effective in a time-limited intensive setting. The National Judicial Institute is making the resources from these programs, as well as from relevant courses on victims, available to law professors who wish to integrate them into teaching on violence against women.

Students in one focus group had an interesting discussion about the use of guest speakers. All agreed that the expertise offered by guest speakers (for example, survivors of violence, practitioners specializing in violence against women work, shelter workers, Crown Attorneys, victim assistance workers, police) would enrich any course. However, concern was expressed that some law students might take non-lawyer speakers less seriously than lawyer speakers and that there might be a tendency to see any guest speaker on this issue as carrying a “bias” that would prevent them from making an “objective” presentation of the issue.

Although none exist within Canadian law schools, domestic violence clinics are not uncommon in American law schools. Camille Carey examines the role of clinics in advancing domestic violence lawyering and argues for a larger and broader role for clinics in this regard:

While family law representation meets an important need for victims, it is only one set of the multitude of potential needs for victims of domestic violence. Our focus on family law routinized domestic violence advocacy, and stymied understanding of its broader effects and possibilities. To move domestic violence law and advocacy forward, we need to more actively engage in dialogue about priorities for civil domestic violence advocacy and take braver and broader steps on behalf of victims.[38]

Carey summarizes the priorities of a number of specific domestic violence law school clinics. These clinics use a variety of models. Some are stand-alone, in-house student law clinics. Others are partnerships between law schools and existing community legal clinics (not unlike the relationship between Osgoode Hall and Parkdale Community Legal Services in Toronto except that, in the American experience, the partnership is focused entirely on domestic violence law). In these cases, the students participate in externships in the community that also carry a seminar and/or paper component that allows them to reflect on their clinical experiences. In other cases, law students work with community domestic violence organizations that would not otherwise be able to offer legal support to their clients (for example, shelters).

While not a university based clinical model, the University of Toronto’s Faculty of Law has an ongoing partnership with the Barbra Schlifer Commemorative Clinic, a legal clinic in downtown Toronto providing legal representation and other services exclusively to women who have experienced violence where a small number of students are placed for academic credit. This is considered an externship placement.

Pro Bono Students Canada (PBSC) offers opportunities for students that fit the externship model. Every law school in Ontario has at least one PBSC project that deals with violence against women. Students are partnered with community agencies where they play a legal role of some kind, such as undertaking research, writing papers, assisting with policy development, providing training and education, among other activities.

Internships provide another learning opportunity for students. The University of Ottawa already offers research internships in which students are placed outside the law school and earn 3 credits for 125 hours of work. The National Judicial Institute takes three students in this program and is committed to taking at least one whose sole focus is domestic violence. This is a model that could be expanded to other law schools.

Ontario’s Family Justice Centres could incorporate legal intern positions, which would create an opportunity for law students to work with legal issues in violence against women cases in a community setting and to learn about the role community organizations and social agencies play in responding to domestic violence.

Another model is the public interest requirement at Osgoode Hall Law School. Students are required to complete a minimum of 40 hours of unpaid law-related public interest work before graduating. Osgoode students have been placed at organizations that either are dedicated to or have the potential to be dealing with violence against women issues: Flemington Community Legal Services; Community Advocacy & Legal Centre (Belleville); Barbra Schlifer Clinic; CLASP; Metropolitan Action Committee on Violence against Women and Children (METRAC); No Means No; Ontario Women’s Justice Network; and Parkdale Community Legal Services.

There are a number of clear pedagogical benefits to clinic-based learning, many of which are enunciated by both Carey and the ABA in its reports. Among other things, students are able to

  • learn interviewing and other important skills in a real-life setting;
  • understand the complexity and intersectionality of domestic violence and the law;
  • learn about non-legal community resources and services for survivors of domestic violence;
  • develop critical perspectives on law;
  • develop the skills to engage in effective problem solving and planning, both emergency and long term; and
  • learn the importance of using a client-empowerment model when working with this client population.

As well, clinics offer important legal services to a vulnerable and under-represented community and provide the opportunity for university-community relationship building.

As Carey concludes, in a comment that could be applied generally to teaching law students about violence against women:

Canadian law schools and law societies are considering an increased role for law student clinics, which makes this an ideal opportunity to discuss the establishment of some clinics that are focused on the legal needs of survivors of violence against women.[39] We note that some law schools, including Queen’s University, have issues of particular concern to older adults or persons with disabilities in their clinic work. For example, Western Law specifically identifies wills and powers of attorney for these communities as part of the assistance available at Community Legal Services.[40]

 

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