Lessons From Canadian Judgments: The Consideration of Culture in Intimate Partner Violence Legal Cases Involving Asian Canadians

Abstract

Despite the pervasiveness of intimate partner violence (IPV) in Canada, research examining IPV in the context of Asian Canadians is scarce. Our study examined whether and how Canadian judges consider culture when determining a sentence in IPV cases involving an Asian offender and/or an Asian victim. We systematically searched for publicly published cases through CanLII. A total of 50 cases met the inclusion criteria. Cultural themes were identified using a direct content analysis approach to capture a priori themes in the literature, as well as identify any other factors considered. Our findings indicated culture was most often considered in only a superficial way (n = 31, 62.0%), where judges only made statements that simply identified the ethnicity of the offender and not how culture may have impacted the case. When examining cases where culture was meaningfully considered there were no prominent culture themes identified (all themes present in <14% of cases). We suggest this may not only reflect the heterogeneity of Asian Canadians, but could also reflect the lack of cultural consideration by the judges. Cultural factors were also rarely considered explicitly as an aggravating or mitigating factor in a case (n = 2; 4.0% and n = 7; 14.0% of the total sample, respectively). The findings reveal the current lack of meaningful consideration of culture in IPV legal cases involving Asian Canadians. We outline how this contrasts the increased attention to the meaningful consideration of culture in the Canadian legal arena and prompt all professionals involved in assessing and managing IPV risk to consider racial, ethnic, and cultural factors in these cases.

One’s ethnicity and culture can have profound impacts on the perpetration of and victimization of intimate partner violence (IPV; Yoshioka & Choi, 2005). There has been a shift from providing culturally-neutral services to an increase in cultural competency and safety in our understanding, programming, advocating, and public policy regarding IPV in the past few decades (e.g., Bent-Goodley, 2005; Cotter, 2021). Understanding the factors that increase or decrease the risk of IPV allows professionals to appropriately assess and manage these risks on an individual basis, which can in turn inform judicial decisions on how one can best respond to these cases in legal contexts for sentencing, rehabilitating, and recommending conditions to effectively manage risk in the community.

The degree to which culture is considered in legal proceedings is questionable in Canadian Court cases. Almond et al. (2021) conducted one of the first studies examining judicial consideration of culture in the context of violence risk assessment in the highest-stakes cases in Canada (i.e., Dangerous Offenders and Long-Term Offender hearings). Almond et al. found that in most (74.5%) of the cases examined there was either no discussion of culture or only a superficial discussion (i.e., statements simply identifying the ethnicity of the offender and not how this may have impacted the case), in the context of a highly diverse population in Canada. These findings are curious given the ethical principles of equity to which judges are to subscribe: “Judges should strive to be aware of and understand differences arising from, for example, gender, race, religious conviction, culture, ethnic background, sexual orientation or disability” (Canadian Judicial Council, 2021, p. 10). The ethical principles are in place to help judges align their practices with independence, integrity, and impartiality, not just to inform sentencing, which should require judges to take into account all the circumstances of the offense and the offender when sentencing (see R. v. Nasogaluak, 2010), which presumably would include influences from someone’s cultural and ethnic background.

When we look at case law and the efforts of the Department of Justice, there are clear indications that the legal system is moving toward meaningful consideration of culture in sentencing. Most notably, “cultural” considerations were subject to appeal in R. v. H.E. (2015). The appeal court decided that culture cannot be considered in the determination of an appropriate sentence if the respondent does not take the position that cultural differences impacted their conduct (see para. 29) and that cultural norms that condone or tolerate conduct contrary to the laws of Canada “must not be considered a mitigating factor on sentencing” (para. 30). On the other hand, Ewert v. Canada (2018) was a seminal case on the matter that progressed to the Supreme Court of Canada. Ewert argued, in part, that due to cultural differences current violence risk assessment tools were providing an inaccurate estimate of risk in his case given his cultural background differing from the populations the tools were developed with and normed for, which may have made his trial and sentencing unfair. Ewert v. Canada and the subsequent critical evaluation of the field (see Haag, 2016) have shifted this focus to consider culture in the assessment and management of violence risk; the fact this shift is indicated surprised some given the established professional standards listing culture as essential to consider in these types of assessments (e.g., American Psychological Association, 2013). With this, the justice system has emphasized cultural-based sentencing through the use of newly developed Impact of Race and Cultural Assessments (IRCAs) or Cultural Impact Assessments (Department of Justice, 2021). These assessments are intended for Black and racialized Canadians to be provided fair and equal access to justice. IRCAs are a pre-sentence report that explains how a racialized offender’s lived experiences of poverty, marginalization, and racism help to understand the offender’s circumstance, the offending behavior, and their experience with the justice system (Department of Justice, 2021; for more information see Dugas, 2020 and R. v. Gabriel, 2017).

Current Study

Given this lack of evidence of consideration of culture in the Canadian Judicial System in the country’s high-stake cases (i.e., Almond et al., 2021), the importance of consideration of culture in the social science and legal literature, professional guidance, case law, and direction of the Justice System, we were curious if and how culture is considered in legal cases for one of Canada’s most common forms of interpersonal violence, IPV, and in one of Canada’s largest cultural groups—Asian populations. We define Asians as people with ethnic origins from continental Asia encompassing East Asia, Southeast Asia, and South Asia to the Middle East (see Government of Canada, 2022). We chose to examine Asian populations as there is a suggestion in the literature of unique culturally specific factors that contribute to the causes and prevention of violence for Asian people (Y. S. Lee & Hadeed, 2009). Although there are suggestions of unique considerations in the literature, research on Asian culture and violence risk is fairly scarce (see Kim & Schmuhl, 2020 and Li et al., 2020). We wanted to examine two things. One, in cases of IPV committed by or toward Asian people in Canada, was culture considered in sentencing decisions, and if so, how. And two, what cultural factors were considered relevant in these judicial decisions.

Method

Researcher Positionality

Researcher positionality is important to establish as per Holmes (2020) where it is emphasized that objectivity, authority, and validity of knowledge are inseparable from the researcher’s positionality and the interpretation of qualitative research findings. The lead author of this study is an East Asian-Canadian, immigrant, graduate student with an academic background in sociology and public health. Her insider positionality with this understudied population allows her to potentially capture nuances not yet widely known in the academic literature. However, this can also serve as a disadvantage in that there may also be inherent bias stemming from her personal experiences. The second author is a White-Canadian working as a psychologist with an academic background in clinical and forensic psychology. While her experience professionally working with individuals and conducting research regarding the present topics serves as an advantage for consideration of the present findings in the state of the field, overall, she has relatively limited familiarity with the culture being studied. The third author is an East Asian international student who recently immigrated to Canada. Her lens of multicultural background brings insight as advantageous for recognizing and respecting cultural diversity, even though she may be limited in understanding the Canadian legal context. We also solicited the feedback of a South Asian-Canadian psychologist with an academic background in clinical psychology on this manuscript to include the perspective of additional insider positionality on this topic.

Overview

Canadian Judicial sentencing decisions in cases of IPV across Canada with a perpetrator or victim(s) who are Asian persons were coded for demographic information, case information, and cultural IPV themes. Data were collected from the public Canadian Legal Information Institute (CanLII, www.canlii.org) database. The method for this study changed over time. We first set out to replicate Almond et al. (2020) to examine the consideration of culture on violence risk assessment in cases of IPV with Asians to see whether the Almond et al. findings were generalizable to a more common offense/hearing type with Asian Canadians. However, in following the same method our search terms only yielded six cases. Given the sample size, we broadened our examination to IPV cases without specifically looking at cases where a violence risk assessment was completed. This method was imperfect for several reasons. First, we broadened the scope to judicial sentencing decisions, so our examination necessarily focused on what factors were considered in sentencing broadly versus specifically as related to violence risk assessment in these cases. While there is considerable overlap, the risk for future violence and how a sentence can mitigate that risk is one of many areas judges must consider imposing a sentence. Therefore this study offers more relevant findings for sentencing considerations than violence risk considerations specifically. Second, judicial decisions often do not make culture explicit or discuss culture in a way that researchers would consider optimal (e.g., accepted definition, routinely identified). We used the identification of ethnicity (i.e., the state of presenting as or belonging to a certain ethnic group) as a proxy for culture in the same way Almond et al. did. Again, this is imperfect but given the nature of legal decisions the only reasonable method of identifying cultural factors in these published cases.

Procedure

CanLII was searched on June 26, 2022 using the following Boolean search terms: [(“intimate partner violence” OR “spousal violence” OR “domestic violence” OR “spousal assault”) AND (Asian search terms here listed as OR) AND Sentencing. We conducted five searches of Asian search terms consisting of searching all Asian ethnicities as defined by Statistics Canada and groups such as “East Asian” as we could not include all ethnicities in one search due to the limited length allowable. We searched all dates up to December 31, 2021, across all Canadian jurisdictions. Inclusion criteria were as follows: cases (1) published in English (due to research constraints, none spoke French), (2) involved a current criminal code conviction related to IPV (i.e., if a perpetrator had a history of charges or convictions of past IPV but not current charges this was excluded), (3) judge was imposing a sentence (i.e., excluded all other judicial matters, like convictions, admission of evidence), (4) not an appeal case (i.e., to exclude redundancy of cases), (5) the victim or perpetrator involved was of Asian descent. Of note, this excluded any family court hearings where matters like custody were being addressed but the case was present in our search results due to the presence of IPV discussed in family court matters. The initial search resulted in 1,038 cases (excluding English judgments written in French from the search results). We removed 22 duplicate cases. Of the remaining 1,016 cases, 50 met the inclusion criteria. Most were excluded as the case did not involve sentencing for IPV charges (n = 604) and others where the case did not involve a perpetrator or victim who was an Asian person (n = 287). Cases were coded using a 21-item coding sheet of demographic information about the case and the cultural themes identified. Demographic information included codes of offender and victim ethnicities. We identified both when ethnicities were explicitly stated as well as when the researchers assumed ethnicity based on contextual data in the decisions (e.g., the offender’s ethnicity was explicitly identified and the victims’ was not but there was an arranged marriage that took place in the offender’s country of origin; all cases of assumed ethnicity were reviewed by two of the authors to ensure consensus on this assumption). Gender was identified through official mentions of gender, pronouns used, and titles (e.g., Mr.). This was an imperfect and crude method of identifying gender identity. This was our only means of gathering gender data with the nature of the written decisions, however. The authors completed five practice cases before coding the sample. All cases were coded twice by two of the authors independently before the development of consensus ratings on each case. Cohen’s Kappa was calculated every 10 cases on the independent ratings for variables that relied on human judgment to ensure adequate interrater reliability before coding continued and consensus ratings were made (0.86 ≥ κ ≥ 0.99; indicating high agreement, per Dettori & Norvell, 2020).

Cultural Themes

We coded cases to identify whether culture was considered, and if so was it considered in a superficial (i.e., if culture was named and no further elaboration or discussion was provided), or meaningful way (i.e., if the perpetrator or victims’ cultural or ethnic background was discussed in more depth, such as commenting on cultural risk factors that led to the perpetration or victimization of violence, or mentioning the protective or supportive aspects of the individual’s cultural background). If culture was considered meaningfully then what cultural factors were considered relevant in these judicial decisions per the a priori themes (see below) as well as the option to identify any other factors present. Finally, we coded for any cultural factor considered aggravating for sentencing (i.e., not just identified in the judicial discussion but also explicitly as an aggravating factor in the case), mitigating for sentencing (i.e., not just identified in the judicial discussion but also explicitly as a mitigating factor in the case), and if any case law was relied upon in sentencing to identify the importance of culture in the imposing of sentence in the case. We did not code for well-established risk factors for IPV, such as a prior history of IPV, as other studies are examining these factors in much more methodologically rigorous ways (e.g., Li et al., 2020). We focused only on factors identified in the literature as culturally related to IPV perpetrated by or toward people who are Asian as this has only been examined to a limited degree.

A Priori Themes

A directed content analysis approach was used to identify a priori cultural themes (Hsieh & Shannon, 2005). Using prior research, the first author identified key concepts or variables as initial coding categories. Most themes were identified through one widely cited article on the topic (Y. S. Lee & Hadeed, 2009) and another recent scoping review of the literature (Okeke-Ihejirika, 2020). Given the literature review was conducted by one researcher as well as the limited research to date on the topic we also coded for any other themes that did not fit into the identified a priori themes. While Asian cultures are vastly diverse and difficult to homogenize, the literature has highlighted specific cultural factors that are potentially relevant to the preparation or victimization of IPV. Themes fell into three broad categories: perpetrator themes, victim vulnerability themes, and systemic themes.

Perpetrator Themes

Cultural Attitudes, Norms, and Values That Support or Condone IPV

Cultural attitudes, norms, and values that support or condone IPV are beliefs that the husband has the right to “teach” his wife (including the use of abusive behavior when necessary), which can set the stage for violence toward women to be accepted by both partners as legitimate treatment (Do et al., 2013; Y. S. Lee & Hadeed, 2009). Patriarchal values emphasize traditional masculine ideals which at its core consist of toughness, anti-femininity, and power and control over women; these values tend to be accepted and embraced in Asian cultures traditionally (Tonsing & Tonsing, 2019). We only considered this factor present when it was explicitly tied to cultural teachings and beliefs and not as general attitudes, norms, and values that supported or condoned IPV.

Immigration and Acculturative Stress

Asian immigrants are faced with a multitude of difficulties and stress created by immigration and adaptation to a new culture: language barriers, limited economic resources, downward mobility, discrimination and racism, clashing cultural values, and social isolation. Consequently, they may experience greater levels of distress, which may in turn increase the families’ vulnerability to conflict, such as IPV (Y. S. Lee & Hadeed, 2009). Furthermore, conflicting values on the role of women in Canada versus their country of origin may create conflict between partners (Pan et al., 2006).

Status Inconsistency

IPV is more likely to occur when an individual’s pre-migration status, educational or occupational, is inconsistent with new norms or his or her current level ( Y. S.Lee & Hadeed, 2009). The differences in income, prestige, and occupational and educational attainment may end up favoring women. This can disrupt traditional patriarchal roles within the household, leading to more violent expressions of power aimed at restoring men’s power over women (Rodríguez-Menés & Safranoff, 2021).

Traumatic Experiences of Domestic Violence in Childhood

Witnessing and experiencing domestic violence in one’s childhood can lead to a normalization and established norm of violent behaviors against one’s partner. This appears to be particularly culturally relevant in the perpetration of IPV by Asian offenders (Tonsing & Tonsing, 2019). Of note, problems resulting from trauma—any trauma—is a well-accepted risk factor for IPV (Forke et al., 2018; Kroop & Hart, 2000), but the literature on Asian cultures only identified witnessing or experiencing domestic violence as a traumatic experience to specifically consider.

Stereotyped Expectations

In Western culture, Asian men fall victim to being historically emasculated, feminized, and desexualized; a polarization to Asian women whom on the other hand are hypersexualized (Liu, 2021). This can thus create a dissonance in the external perception of Asian men versus the ideals of masculinity prescribed by Asian culture that they have internalized and desired. The perpetration of violence against one’s partner can increase a greater sense of control and power (Y. S. Lee & Hadeed, 2009).

Victim Vulnerability Themes

Victim behaviors, attitudes, and circumstances can impact IPV risk. This does not mean victims are to blame for the violence, but that aspects specific to current or potential victims can increase or decrease violence risk in these cases (Edhammer et al., 2022).

Gender Roles

Traditional gender roles within Asian immigrant communities tend to emphasize women’s subservience to their father, husband, and son and controlled sexuality. Asian culture often enforces ideals of hierarchy that heavily shape Asian women’s experience of gender (M. Lee et al., 2021). There is a strong emphasis on docility and lack of assertiveness that can be embedded in Asian women from a young age. Additionally, cultural ideas of honor and “saving face” enforce these ideals and discourage divergence from them (Tonsing & Tonsing, 2019). This may foster an environment for Asian women to be at increased risk for victimization.

Social/Cultural Isolation

Asian immigrant women are particularly vulnerable to the deleterious effects of social isolation because they leave their networks of family and friends behind (Y. S. Lee & Hadeed, 2009). Furthermore, abusers weaponize social isolation to keep women from understanding their abusive situations, seeking help, and leaving a violent relationship; and by limiting self-sufficiency, it eliminates challenges to the abusers’ dominance and control (Y. S. Lee & Hadeed, 2009). Asian immigrant women additionally face the barrier of social isolation as women are more likely to be “sponsored” by their husbands to immigrate to Canada and lack community or family here (Okeke-Ihejirika et al., 2020).

Help-Seeking Behaviors and Stigma

Asian cultures deeply emphasize values around family as well as the maintenance of harmony in the household (Do et al., 2013). As such, a wife’s individual welfare is subordinate to the overall welfare of the family, which would be more threatened by directly opposing the husband, even when he is abusive. Victims may believe that their husband’s behavior is justified, that nothing can be done about the abuse (e.g., seeking help would necessarily disrupt the harmony of the household), and that abuse is a private matter (e.g., pressures of maintaining Confucian values of honor; see Do et al., 2013). Some Asian women, who grew up under the influence of strong patriarchal values, may not hold the same threshold for defining IPV as non-Asian women and may not even acknowledge their partner’s behavior as abusive (Okeke-Ihejirika et al., 2020). Immigrant women can be positioned to be especially vulnerable when in situations of IPV due to barriers to accessing domestic violence shelters and services (e.g., language or knowledge of services; Hulley et al., 2022), distrust of police (Pass et al., 2020), or fears of deportation (Hulley et al., 2022).

Systemic Theme

Certain stereotypes about Asian women can make them particular targets of IPV. This stems from a long history of military occupations and other relations with East and Southeast Asian countries that produced war brides, sex tourism, pornography, and mail-order brides and has consequently produced sexual fantasies and fetishes of Asian women as the docile “lotus flower” or seductive “dragon lady” (see Zheng, 2016).

Fetishization

Fetishization is prevalent among Asian women who marry through the international marriage market and who are often low-income women who meet a (often White) husband from the United States/Canada and seek these marriages as an escape from poverty. This, however, can leave them especially vulnerable if their situation becomes abusive, as they are particularly isolated and face issues with citizenship and fears of deportation (Y. S. Lee & Hadeed, 2009).

Sample Characteristics

The 50 cases examined were not representative of the general population of Canada. Some provinces and territories were not represented and the distribution was not reflective of the general Canadian population. However, our sample did reflect the highest number of cases in the provinces with higher concentrations of Asian peoples ¹ (i.e., Ontario, n = 37, 42.0%; and British Columbia, n = 17, 34.0%), which was consistent with expectations. In Alberta 14.0% of cases occurred (n = 7), and one case each occurred in the remaining provinces of Manitoba, Newfoundland and Labrador, Nova Scotia, and Yukon (2.0%). The sample reflected 12 of 54 Asian ethnicities listed in the Canadian census. Indian and Chinese perpetrators (n = 19, 38.0% and n = 7, 14.0%) and victims (n = 16, 32.0%; n = 7, 14.0%) were the most represented followed by Filipino/a perpetrators and victims (n = 10; 5% for both), Afghan offenders (n = 3, 6.0%), and Iranian offenders (n = 3, 6.0%). The remaining cases had one or two ethnicities represented including Armenian, Bengali, Cambodian, Iraqi, Sri Lankan, Thai, Vietnamese, and White. A few ethnicities were identified broadly (e.g., South Asian and Middle Eastern) or inconclusive but were determined due to reasonable evidence (e.g., the couple met through an arranged marriage by their families). This included Chinese, Afghan, and Lebanese (each victim: n = 1, 2.0%), and Indian (perpetrator: n = 1, 2.0%; victim: n = 3, 6.0%). This left six cases, where the victims’ ethnicity was coded entirely as missing. Most cases involved offenders who we identified as male (n = 46, 92.0%) and victims who we identified as female (n = 46, 92.0%). All cases appeared to have involved heterosexual relationships (see Methods/limitations for potential misgendering, nature of relationship assumptions from our methods). The nature of these IPV relationships was toward a current partner (n = 33, 66.0%), even though there were a substantial number of cases against former partners (n = 6, 12.0%) or at the time a relationship was dissolving, which refers to violence that occurred as the victim was attempting to leave the relationship (n = 11, 22.0%).

Results

Our results indicated that cultural factors were not frequently cited or mentioned in most of the cases. We found that culture was most often considered in a superficial way (n = 31, 62.0%), in which most of the time judges only made statements that simply identified the ethnicity of the offender and not how ethnicity or culture may have potentially impacted the case. In 38.0% of cases, culture was meaningfully considered (n = 19). In the sections that follow we will report the cultural findings by a priori themes. There were no perpetrator-stereotyped expectations or fetishization or other systemic factors identified so we will not report on this further. It is unclear whether or not this is attributed to the low prevalence of the issue or perhaps the lack of awareness surrounding them. We report the cultural findings as the relatively common factors in this sample but caution these findings should not be interpreted as “common” or “frequent” as at most 14.0% of the sample had any given theme. We also report on other themes identified and factors considered explicitly as aggravated or mitigating. Only 2 of the 50 cases (4.0%) cited cases on legal arguments for cultural similarities of cases. We will not report on this further.

Cultural Considerations for Perpetrators

The relatively common factors from the identified a priori themes were both the presence of cultural attitudes, norms and values that support or condone IPV and immigration and acculturative stress (both; n = 7; 14.0% of the overall sample). Cultural attitudes, norms, and values were identified explicitly and in detail within some of the judgments (e.g., “his acceptance of general Canadian values in which a woman could elect to end the marriage on her own, move on and, in fact, remarry, appeared quite superficial. The attitude and manner in which he recounted his marital history and his own interpretation of the events leading to his charges reflected patriarchal attitudes and values as well as a strong belief in male prerogative and entitlement to deal with one’s wife with violence ‘if need be’”). Similarly, there were meaningful considerations of immigration and acculturative stress (n = 7, 14.0%; e.g., “He has led a rather sheltered life apparently in China and . . . had some difficulty adjusting to life in Canada other than in an academic setting”). Other a priori themes were infrequently present: traumatic experiences related to domestic violence in childhood (n = 4; 8.0% of the overall sample) and status inconsistency (n = 2; 4.0%).

More notably, we found 11 cases with perpetrator cultural factors that did not fit within the identified a priori themes. These 11 cases were consolidated into seven subthemes. The most common was shame on the perpetrators (n = 3; 6.0% of the tota). A few cases reflected the perpetrator’s legal status in the country, which was particularly relevant to sentencing principles and practice rather than violence. Notably, in two of the four cases perpetrated by females, the judgment noted that the female-perpetrated violence took place within a home that was characterized by male dominance and prior violence toward the perpetrator subject to the index sentencing by the index victim (both n = 2; 4.0%; e.g., “it is alleged that prior to her hiring a hitman to murder her husband, he had, “assaulted her ‘several times’ during their marriage, but she never reported it to the authorities because it was socially unacceptable in her community for Afghan women to make such complaints”). There were other cases where each individual factor was not similar to either the a priori themes or other factors identified. These related to the cultural community being a protective factor for the perpetrator (e.g., support [for the perpetrator] of the Filipino community as a positive factor for community reintegration), history of childhood victimization by state violence (i.e., did not fall within the a priori defined childhood experience of domestic violence but fits within the general conception of victimization related to perpetration of IPV), the experience of racism and discrimination (though importantly this case involved an individual who was identified as both Asian and Indigenous and the racism and discrimination was directly related to being indigenous), and one odd case where the judge dismissed the defense’s argument that the perpetrator’s cultural background in the case made the offender not equipped to handle marriage (all n = 1; 2.0%).

Recognition of Culturally Linked Factors for Victims

As we examined cases of sentencing the perpetrator, the situation of the victim was seldom mentioned in great detail. The relatively most common victim vulnerability theme was social and cultural isolation (n = 7; 14.0%). For example, in one case the judge wrote “the victim was vulnerable by reason of her social situation within Canada. . . [the victim] did not speak the English language and had no friends or family other than her husband.” Next, most frequent was victims’ help-seeking behavior and stigma (n = 5; 10.0% of the total sample). For example, in one case the judge noted that the victim felt embarrassed by her injuries and was not allowed to call the police. The least frequent theme was gender roles (n = 4; 8.0% of the total sample). Gender roles came up in heterogenous ways; in one case the victim felt compelled to engage in sexual acts requested by the accused, as she felt it was her duty as his wife, and in another where the victim stayed in the violent marriage due to societal and cultural pressures from her mother.

There were just three cases identified as other victim vulnerability factors which did not fit the a priori themes (6.0% of the total sample). Again this was quite infrequent, but we feel worth identifying two cases where the perpetrator threatened to deport their intimate partner in the context of the violence (4% of the total sample; e.g., “he stopped the complainant from contacting her mother or sister and started telling the complainant that she would be deported if she left him. He threatened that she could not leave him and she believed him.”). We felt that the threats of deportation were “other” as opposed to social-cultural isolation because they related to immigration specifically, and not isolation necessarily. There was also one case where the interpretation and language difficulties of the victim were noted to have impacted the judicial sentencing process.

Cultural Factors Explicitly as Aggravated or Mitigating

Consistent with our infrequent findings above, cultural factors were rarely considered explicitly as an aggravating or mitigating factor in a case (n = 2; 4.0% and n = 7; 14.0% of the total sample, respectively). In both cases where the cultural factors were considered aggravating it related to the perpetrator’s role in the social isolation and threatened deportation of the victim. The mitigating role of culture varied in the seven cases identified but included arguments to support the mitigating role difficulties the perpetrator had with immigration and acculturation, state violence in their country of origin, overcoming hardships, and the importance of ongoing culture community connection in sentencing.

Discussion

We found that culture is rarely meaningfully considered in the context of the sentencing of IPV involving Asian Canadians. In most cases culture was either not considered or only considered in a superficial way. These findings are consistent with Almond et al. (2020)’s findings and do not align with the suggested importance of considering culture in IPV emphasized in the literature generally (Cotter, 2021), or specifically in Asian communities (Lee & Hadeed, 2009), per case law g (i.e., R. v. Nasogaluak, 2010 ; R. v. H.E., 2015; Ewert v. Canada, 2018), the Ethical Principles of Judges (Canadian Judicial Council, 2021), nor, albeit new, the focus of the justice department efforts for inclusion of IRCAs in sentencing. There are risks to this practice. For example, if culture is not meaningfully considered, judgments are potentially invalid and thus unjust, access to justice may be unfair and unequal to racialized groups, these practices can prevent offenders from remedial efforts that are culturally informed and culturally safe, and these practices can be a barrier and cause harm for victims of the violence (e.g., without considering culture harmful victim-blaming practices may be perpetuated).

These findings also revealed that when considered meaningfully, the cultural factors identified were heterogeneous and infrequent. Most of the a priori themes from the literature were identified in 4.0% or more of the cases examined, even though none of the themes were present in more than 14% of cases, and there was no evidence of perpetrator-stereotyped expectations or the systemic factor of fetishization or any other systemic factors identified. With this, there were 11 cases, almost a quarter of the sample, where factors were identified that did not fit with the a priori themes. Some of this was reflective of likely considerations for sentencing over violence risk in these cases (i.e., sentence was reduced due to legal status in the country), but also other seemingly important aspects to consider in these cases (i.e., female perpetration of violence as a reactive response to a history of violence inflicted on them or their children by the victim the in index case; the identification of cultural community connection as a protective factor for violence or mitigating factor for sentencing). We suspect that the rarity of our findings may be partly explained by the heterogeneity of Asian populations. It may also be that culture is not being considered when it ought to be. There may be a continued “cultural-neutral” approach to judicial decision-making reflected in the current sample. Alternatively, the rarity may in fact reflect a valid finding that just because someone is a member of a racialized group does not mean that cultural factors are present, or perhaps meaningful and relevant to sentencing in these cases. The methods did not allow us to examine the possible causes of the findings.

Consideration of Culture in Practice

As stated by Jamal (2012), the Canadian legal system’s foundation was built for the White, middle-class family, thus highlighting the need to update the system to better address the needs of Canada’s current diverse population. The administration of judicial sentences is an incredibly complex process and we have the utmost respect for the justices doing this important work. But, there do seem to be some important findings from case law, the new emphasis on the role of the IRCAs, and the social science literature that can increase cultural competency, safety, and meaningful consideration of culture in sentencing.

Navigating cultural competency and cultural safety for professionals working with Asian Canadians perpetrating or experiencing IPV in practice is difficult. The field has limited guidance on what one ought to be considering in cases where culture may be playing a role in IPV. As expanded on in this paper, there is some budding knowledge on what factors we might consider, but these factors are not entirely illuminating given the nature of the findings and the heterogeneity of Asian culture in Canada and how culture may or may not impact IPV. For further guidance on using the growing findings, we encourage practitioners to familiarize themselves with the current body of knowledge of IPV with Asians and (to the extent it might improve practice outside Canada) the new Canadian IRCAs, the Violence Risk Assessment and Management Practitioner Checklist: Cross-National and Cross-Cultural Assessments for legal, ethical, and practical considerations for professionals conducting violence risk assessments (Cook & Hart, 2017), and the American Psychological Association Cultural Formulation Interview for some basic guidance on how to provide person-centered consideration culture in understanding and helping people from different cultural backgrounds (see Aggarwal & Lewis-Fernández, 2020). ²

Limitations and Future Research

Perhaps the most significant limitation of this study was our examination of violence that represents the unicorn of IPV in Canada: cases that not only were reported to police (it is estimated that around 70% of cases are not reported to police; Gurm and Marchbank, 2020), but were followed through to conviction and sentencing. There are also particular barriers in accessing the legal system for marginalized groups including language barriers, not having the financial ability to seek legal support, and distrust in institutions such as the police (Hulley et al., 2022). Examining IPV from field study designs and designs not reliant on police-report and convicted crimes will be critical to gain a valid view of IPV. With this, we recognize that accessibility to the legal system is limited for the most vulnerable populations experiencing IPV, particularly immigrant women and the LGBTQ+ community. As such, further research and expansion on this topic should aim to fill this gap to create greater inclusivity of voices who are the most marginalized in society.

The literature surrounding Asian Canadians and IPV is minimal, perhaps due to perceptions of this population as the “model minority,” a stereotype that portrays Asians as a group who keeps their head down, works hard, and has been able to overcome racial barriers. Asians as a result are overlooked in research due to perceptions of them as lacking problems (Kim & Schmuhl, 2020). More research is needed in this area generally. While our study contributes to expanding the knowledge base we also examined “Asian” cases quite broadly. Our use of the term Asian encompasses a large and very diverse ethnic group with unique nuances. We encourage further research to examine ethnic groups separately to not miss any specific nuances that may be overlooked from a broader level lens. Due to the geographic focus on Canada, generalizability to other countries may be limited due to the differing practices in legal systems. Even within Canada, given we explicitly sought out cases with perpetrators or victims who were Asian, this study is still likely not generalizable to all cases going through the justice system involving Asian Canadians. We suspect many cases did not identify the culture or ethnicity of the offender or victims, given the low number of cases identified, and the results are not representative of French-speaking populations. As work continues in this area, examinations of whether and how judges or other legal professionals (i.e., lawyers, forensic evaluators) are considering culture will be critical—such as through structured interviews directly with decision makers and evaluators.

Demographics were further limited in our assumptions and crude measures of ethnicities, genders, and the nature of the relationships. We opted to code these factors in this limited way in an effort to glean some understanding of these characteristics in this important data but would like to highlight the limits and exclusionary nature of this approach. One critical miss is our lack of measurement of the level of acculturation, immigration status, and time spent in Canada. There may be a moderating effect for individuals who are more acculturated to Canadian culture, who are second- or third-generation immigrants, or who were born or spent most of their lives in Canada compared to others. We also did not have any cases where someone identified as nonbinary even though given the prevalence of people who identify as nonbinary it is possible we misgendered some of the individuals discussed in the court decisions as well as by extension the nature of the relationship. This should not be taken as the existence of these cases being insubstantial, but perhaps more in the barriers this group faces in accessing IPV and legal resources and we feel marks a limit of the study given the staggering rates of IPV for people who are transgender (Peitzmeier et al., 2020) and in homosexual relationships (Rollè et al., 2018).

The current findings underscore the importance of meaningfully considering culture in the assessment of IPV. We hope our findings overall draw attention to a previously overlooked issue and begin an important conversation about the treatment of racial minorities and immigrants in the justice system.

Supplemental Material

sj-docx-1-jiv-10.1177_08862605231178494 – Supplemental material for Lessons From Canadian Judgments: The Consideration of Culture in Intimate Partner Violence Legal Cases Involving Asian Canadians

Supplemental material, sj-docx-1-jiv-10.1177_08862605231178494 for Lessons From Canadian Judgments: The Consideration of Culture in Intimate Partner Violence Legal Cases Involving Asian Canadians by Kyara J. Liu, Alana N. Cook and Ruijie Jiang in Journal of Interpersonal Violence