A key component of the Commission’s report will be the evidence of how federally sentenced women are actually being treated in and by the prison. On the surface, this would seem to be a simple matter of information and data gathering. However, the specific subject of this review seriously complicates the gathering of information and data, as well as the interpretation of the information and data that is collected. The extreme power imbalance in operation in the prison setting, the unsatisfactory handling of previous complaints, the continuing failure to remedy ongoing problems and the omnipresent specter of retribution, combined with the personal histories, extreme vulnerability and the perceived lack of credibility of federally sentenced women are at the same time a major part of the problem under investigation and a major impediment to getting at the problem under investigation.

Insights into individual and systemic barriers to disclosure in other areas, including human rights generally and in relation to issues of violence against women, are helpful in thinking about the barriers experienced by federally sentenced women. The prison context would greatly exacerbate the problems encountered in these other settings, as well as create its own unique inhibiting factors.

Barriers in the Human Rights Context

The invocation of antidiscrimination law does not enable the victim to overcome power differentials in situations where she or he is pitted against the more powerful opponent. The bonds of victimhood are reinforced rather than broken by the intervention of legal discourse.⁴

The Commission is well aware of the manifold problems that inhibit the filing of human rights complaints generally and the ways in which legal assumptions, as well as the complaints process, deter those who have been discriminated against from coming forward with their stories. It is recognized that the complaints brought to human rights commissions represent only the tip of the discrimination iceberg.5 While an investigation/review of the type being conducted by the Commission into the treatment of federally sentenced women is intended to circumvent some of these problems, the process is nonetheless dependent on the stories of mistreatment and abuse being told. But the different process does not necessarily make the telling of those stories any more likely or the information gathering any easier. The inhibiting factors simply resurface at a different level and in different ways. One cannot assume that issues of disclosure have been addressed simply because the information is being actively solicited or that victims of discrimination will necessarily be any more willing to tell their story to a human rights investigator than to a prison official.

In her article, Victims in the Shadow of the Law, Kristin Bumiller explores some of the reasons why victims of human rights violations are unlikely to complain of the mistreatment they have experienced. Her empirical study is grounded in a critique of the model of legal protection on which contemporary anti-discrimination policies are based: