Women and wrongful convictions: concepts and challenges Debra Parkes * and Emma Cunliffe † Abstract This paper draws from the wrongful convictions of women to interrogate the limits of dominant conceptions of wrongful conviction. Most North American innocence projects turn on a conception of demonstrable factual innocence. The paper argues that this focus is problematic as a matter of criminal law principle and presents particular difficulties for women. The paper identifies that family violence forms the primary context for both the conviction of women for violent crimes, and for women’s wrongful convictions. Taking two key examples of family violence – child homicide and intimate partner violence – we illustrate that the prevailing focus on demonstrable factual innocence fits awkwardly with identified wrongful convictions in these areas, and argue that this focus may deflect attention from unidentified miscarriages of justice. We suggest that focusing on factual innocence undermines the criminal justice system’s proper focus on state responsibilities, including the responsibility to protect women and children from harm, and the asymmetric burden of proof that applies in criminal cases. I. Introduction This paper is an exploratory inquiry into what, normatively and in practice, is included within the concept of ‘wrongful convictions’ and, correspondingly, what kinds of cases do not qualify for that label. We are moved to investigate this question because, as feminists who study the roles and experiences of women in criminal law, we found ourselves asking: Where are the women in the stories and reports of wrongful convictions? In one sense, women are pervasive – they are overwhelmingly likely to be the victims of crimes that are identified as wrongful conviction; 1 they are jurors, witnesses and official actors; they represent bereaved families and the families of those who are wrongly imprisoned (Milgaard and Edwards, 1999). Women haunt popular narratives of errors made within the criminal justice system as the ghostly victim seeking earthly justice, 2 or the family member who stands by a wrongly convicted son or brother in the face of condemnation and prejudice (Goldwyn, 2010). 3 Occasionally, the media reports that female family members of victims have supported those who have been wrongly convicted and called for police to focus on catching the real criminal (Hall, 2012; Duncan, 2013). * Associate Dean, Research & Graduate Studies, Faculty of Law, University of Manitoba. Email: debra.parkes@ umanitoba.ca. † Associate Professor, Faculty of Law, University of British Columbia. This research was funded by a SSHRC Standard Research Grant and by the Social Justice and Human Rights Research Project, University of Manitoba. Research assistance was supplied by Zoë Prebble, Jennifer Dyck, Katrine Dilay and Brenda Harvey. Thanks also to Benjamin Berger, Amanda Glasbeek, Imogen Goold, Sonia Lawrence, Kim Pate and Richard Weisman for offering feedback on earlier versions of this paper. Email: cunliffe@law.ubc.ca. 1 This pattern is apparent from the narratives of wrongful conviction supplied in articles and reports, such as Gross and Shaffer (2012). It probably arises in part because of the large number of DNA exonerations that are sexual assault / murder cases. 2 See e.g. the novel The Lovely Bones (Sebold, 2002) and the 2009 movie of the same name (Jackson, 2009). 3 For example, Conviction, a 2010 movie about a wrongful conviction (Goldwyn, 2010). International Journal of Law in Context, 11,3 pp. 219–244 (2015) © Cambridge University Press 2015 doi:10.1017/S1744552315000129