Six Degrees from Liberation: Legal Needs of Women in Criminal and Other Matters

Chapter 1: Legal Aid and Other Legal Needs of Women Accused (cont'd)

Chapter 1: Legal Aid and Other Legal Needs of Women Accused (cont'd)

1.1 Statistical Picture (cont'd)

1.1.3 Welfare Fraud

As welfare incomes drop further and further from a minimum level of subsistence established by the poverty line, women’s prosecution for welfare fraud has increased.[44] Despite the non-incarceral options available to respond to welfare fraud, the government of Ontario (considered a leader in its zeal to make examples of people convicted of welfare fraud) is increasingly pursuing incarceral sanctions:

  2000-01 1999-2000 1998-99 1997-98
# Cases % # Cases % # Cases % # Cases %
Incarceration [45] 7,737 43.6 7,139 45.5 5,747 33.95 3,136 21.2

While the majority of women who are incarcerated for welfare fraud receive sentences of less than two years, the number of women receiving federal sentences for fraud more than quadrupled between 1994-95 and 1998-99, from four to 18 – close to 5 percent of this population.[46]

A number of salient features emerge from governmental moves to vigorously prosecute cases of welfare fraud.

Firstly, welfare fraud is a strongly gendered issue. Women’s deeper experience of poverty inextricably leads them to seek government support. However, in an era in which collective societal resentment toward those who receive social assistance is openly encouraged, the image of the welfare "cheat" that is increasingly cultivated is that of an irresponsible single mother who has neither a job nor a man to ensure a good home for her child.[47] As Erlee Carruthers noted in quoting Linda Gordon:

… for all women, black and white, the need for "welfare" in industrial society arises primarily from the gap between the myth that women are supported by men and the reality that so many are not. … Increasing numbers of women … are living in poverty because of their inability to fulfil their role in the economic marriage of breadwinner-dependent, assumed to be the family norm …[48]

Moreover, it is not at all clear that the fraud is as widespread as governmental news releases suggest. For example, in 1992-93, two political science professors at the University of Montreal examined surprise visits to welfare recipients by Quebec case officers. The provincial government had claimed that as much as $30 million a year was lost to welfare fraud, but the study found that the crackdown saved the government about $3 million. In 1992-93, the excess that was identified averaged $30 a visit.[49] More people cheat on their income taxes and lie about their cross-border shopping than defraud the welfare system. Corporate crime, white collar fraud and tax evasion, in Ontario cost the public more every year than the entire cost of the social assistance system.[50] Ontario's Auditor General found that in 1992 corporate cheating on the medicare payroll tax cost the government $140 million, significantly more than the estimated $70 million to $100 million lost to fraudulent family benefits claims. In the absence of a similar crackdown on the fraudulent offences of more privileged citizens, the differential treatment of rich and poor becomes apparent.

Secondly, the more onerous consequences of prosecution for welfare fraud may not be the penal response or the imposition of a fine. Rather, the imposition of a lifetime ban on receipt of social services – currently the law in Ontario – can have devastating consequences for social assistance recipients.[51] This ban includes the denial of subsidized medication, and, in several provinces, a ban on access to a range of social services – including access to transition houses and other shelters for abused women that receive funding from the government.[52]

1.1.4 Drug Offences

The majority of drug-related charges laid against women arise from possession of or trafficking in cannabis. However, women offenders do not typically play a substantial role in drug trafficking. Rather, their drug convictions often relate to drug use, and their roles as couriers of drugs.[53] While women in prison in the United States have reported making more illegal drug sales than men, it was due to the smallish value of the transactions: the average transaction was less than $10.[54]

1.1.5 Prostitution

The vast majority of women arrested for prostitution-related offences are arrested for "communicating" offences or "street prostitution."[55] The fact that brings this activity to the attention of the police is poverty. What some people do in the privacy of their homes, people living in poverty do in public places that are likely to attract police attention.[56] As such, their behaviour is more frequently criminalized, and the face of poverty becomes, de facto, the profile of criminality:

It’s not that people aren’t guilty of crimes for which they are sentenced but there are others who are equally or more dangerous, equally or more criminal. … The criminal justice system works systematically not to punish and confine the dangerous and the criminal but the poor who are dangerous and criminal.[57]

Their involvement in street prostitution makes women who work in the sex trade more vulnerable to arrest for other crimes. For example, theft offences are often associated with prostitution-related activity. However, rather than being the results of premeditated crimes, most theft convictions for prostitutes arise from women’s demands to be paid for sex acts performed.[58]

1.1.6 Non-payment of Fines

Fines are most commonly issued for driving while under the influence and for such morals charges as soliciting for the purposes of prostitution.[59] The vast majority of people admitted to prison because of fine default are there because they have no money to pay the fine, and a disproportionate number are Aboriginal.[60]

A 1989-90 study of women prisoners indicates that fine default played a major role in their incarceration, especially for Aboriginal women in the prairie provinces.[61] Because women are the poorer of the poor, and have less access to jobs than men, it has been suggested that their relative poverty is the reason for their disproportionate imprisonment for fine default.[62] The proportion of female inmates admitted for fine default was 47 percent in Saskatchewan, 39 percent in Alberta, 30 percent in Manitoba, 29 percent in Ontario, and 22 percent in Quebec. The complicating realities of women’s lives also lead them to default on their fines:

You need to be fairly organized to pay off a fine. For some women it’s too hard – there are other things going wrong in their lives. These other difficulties tend to be the reasons they are in the (criminal justice) system in the first place.[63]

The alternatives to fine payment in some provinces are community work programs. But these rarely provide childcare for participants. As a result, women, particularly overworked mothers, have high rates of failure in these programs.[64]

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