If you find yourself in Montréal this Sunday, there will be a protest against the recent legislative assaults on the reproductive freedoms of Canadian women.
The protest was originately against Bill C-484, but the people behind it decided to broadened its purpose, given that the upcoming elections have effectively put C-484 on hold - for now - and given the other crazy right-wing anti-abortion legislative initiatives that have surfaced recently.
Come and join other feminists and like-minded citizens at 1:30 p.m. in Parc Lahaie (corner of St. Laurent and St. Joseph). Bring signs, t-shirts and catchy slogans.
In the mean time, do visit the organization committee's website.
***
As a general note, let's not kid ourselves. On October 14th, Canadians will vote for the future of reproductive and abortion rights in Canada.
Is your current MP pro-choice or does he/she oppose abortion? Check and find out here.
***
The Barreau du Québec has finally taken a stand against Bill C-484. The Barreau's letter to the Senate exposes how the C-484 effectively would have the effect of conferring legal personality onto the fetus, and how it could undermine women's right to have an abortion.
Showing posts with label law. Show all posts
Showing posts with label law. Show all posts
Tuesday, September 23, 2008
Sunday, September 14, 2008
The "You've come a long way, baby" moment of the week
Law, when it comes to gender issues, is a most amazing field of study - and work.
One very interesting thing is that, along with medicine, law used to be a predominantly male bastion of the workplace. Don't get me wrong, our noble profession is still in many ways run like an old boys' club (think "billable hours"). However, young women are graduating from law school and are being called to the Bar in gargantuan proportions (in Québec, there are roughly 3 female law students for every male, and guys are becoming an endangered species in Bar school).
One very interesting thing is that, along with medicine, law used to be a predominantly male bastion of the workplace. Don't get me wrong, our noble profession is still in many ways run like an old boys' club (think "billable hours"). However, young women are graduating from law school and are being called to the Bar in gargantuan proportions (in Québec, there are roughly 3 female law students for every male, and guys are becoming an endangered species in Bar school).
The phenomenon is strikingly observable in the courtroom. In practice division (where lawyers show up at court in the morning to be either heard by a clerk or dispatched before a judge to present their motions), the great majority of lawyers in their 20's as well as a good proportion of lawyers in their 30's are female, while the lawyers with grey hair are almost all men.
10 to 20 years form now, if we keep this pace, we'll be running the business.
Until then, I guess we'll have to cope with our beloved patriarchal legal practice, as sexist and - sometimes - disappointing as it gets...
***
I was waiting for my case to be called in practice division the other day, when I had to momentarily leave the room to speak to the other counsel, leaving my briefcase and my documents on my seat behind me.
When I got back inside, a middle-aged lawyer was sitting on my chair, preventing me from getting to my stuff. I politely whispered: "Excusez-moi, mais ce sont mes affaires."
He got up, smiling, started stroking my shoulder paternalistically and said: "Tu sais, tu peux t'asseoir sur mes genoux."
I managed to stay polite and not to let show how pissed I was from this verbal butt-slapping, and told him: "No, I don't think so."
Many people noticed, among them the clerks (all women) who, to my relief, frowned in utter disgust.
The lawyer in question, on the other hand, seemed blissfully unaware of both the lack of propriety of his conduct, and the fact that he's part of a - hopefully - dying breed.
Saturday, March 1, 2008
Updates on Bill C-484
Bill C-484 wasn't debated yesterday in the House of Commons as expected earlier. As a matter of fact, the debate has been postponed to this Monday, March 3rd.
In the meantime, Conservative MP and proponent of the Bill, Mr Ken Epp, reassures Canadians that the so-called "Unborn Victims of Crime Act" has absolutely nothing to do with restricting abortion:
"Because we want to recognize the humanity of that unborn child. Whether that child was killed three months before birth or three months after birth, it was still a child, there was still a loss of life. The other side might wish to deny the humanity of that unborn child, but we want the law to recognize it."
***
For more debunking of the anti-choice bullshit in "women's protection" disguise regarding Bill C-484, click here.
***
And don't forget to do you part and write to Liberal leader Stéphane Dion and to your MP!
In the meantime, Conservative MP and proponent of the Bill, Mr Ken Epp, reassures Canadians that the so-called "Unborn Victims of Crime Act" has absolutely nothing to do with restricting abortion:
"Because we want to recognize the humanity of that unborn child. Whether that child was killed three months before birth or three months after birth, it was still a child, there was still a loss of life. The other side might wish to deny the humanity of that unborn child, but we want the law to recognize it."
***
For more debunking of the anti-choice bullshit in "women's protection" disguise regarding Bill C-484, click here.
***
And don't forget to do you part and write to Liberal leader Stéphane Dion and to your MP!
Wednesday, January 16, 2008
When does catcalling become criminal harassment?
Imagine you're walking down the street with your five year-old child. Some random guy starts following you, wolf-whistling at you, and repeatedly telling you - in a completely uninvited and unwanted fashion - that you've got a nice ass, or nice tits or whatever. He only stops when you get in your car and speed away from the scene.
Surely, most women would say that such behaviour constitutes "harassement" in the colloquial sense of the word. But would most women say feel "threatened" by such catcalls?
(For harassment to constitute criminal harassment in the eyes of our criminal law, it has to be objectively "threatening," that is, that the accused's conduct must "[rise] to the level of a 'tool of intimidation designed to instill a sense of fear'".)
Now, what if the catcaller was a police officer in full uniform?
In a recent case, the Yukon Territory Court of Appeal acquitted a police officer of harassment charges, on the ground that his actions did not objectively constitute a "threatening" conduct.
Some commentators have rightly pointed out that the Court failed to take into account that the power dynamic that necessarily kicks into gear when a person in authority is involved:
I would have liked the Court to say something more about the fact that the accusedmade these comments while in uniform.
To my mind this elevates the conduct, viewed objectively, beyond the merely inappropriate, and potentially makes it threatening and intimidating. This guy wasn’t a construction worker.
Any thoughts?
***
Update (as a - lenghty - response to Lilith's comment):
The problem is that under our criminal law, we're stuck with "objective" notions of what is threatening when it comes to such offences as criminal harassment and uttering threats. The rationale for this is that the law seeks to punish the offender who had the intention to cause the victim to feel threatened or in danger of death or bodily harm. The courts determine if this intention is present by asking themselves whether the accused's words or actions were designed to instill fear, from his point of view, and not from that of the victim.
This is why we're forced to trust our judges with taking into account the perspective of the women who are most often the victims of such crimes. Unfortunately, this is not always the case. For instance, in 1991, in the McCraw case, the Supreme Court of Canada had to explain why threatening a woman of rape, even when the guys says he finds her pretty or that he's infatuated with her, necessarily constitutes a threat of bodily harm...
The problem is that judges are most often men, who interpret objective legal norm from the vantage of a reasonable man, who unlike a reasonable woman, is usually not afraid to go out alone at night, and usually capable of fending off potential assailants...
I agree that is not the best way to interpret laws that, in practice, seek to punish acts of violence against women. In fact, many feminist legal scholars have demanded that courts turn to a standard of a "reasonable woman" in such cases.
However, I'm not too sure it's a good idea, because I fear it would only allow male judges to introduce sexist notions on how a "reasonable female" should behave in such and such situation into our jurisprudence.
The best solution, I think, would be to appoint more women to the Bench!
A side note: In my opinion, the offenders who harass women or who threaten them, on the other hand, usually understand too well what women find threatening. That's precisely why they harass or threaten them in the first place.
That's also something - unfortunately - they understand almost instinctively, something they understand better than the judges who are called to rule their case.
Surely, most women would say that such behaviour constitutes "harassement" in the colloquial sense of the word. But would most women say feel "threatened" by such catcalls?
(For harassment to constitute criminal harassment in the eyes of our criminal law, it has to be objectively "threatening," that is, that the accused's conduct must "[rise] to the level of a 'tool of intimidation designed to instill a sense of fear'".)
Now, what if the catcaller was a police officer in full uniform?
In a recent case, the Yukon Territory Court of Appeal acquitted a police officer of harassment charges, on the ground that his actions did not objectively constitute a "threatening" conduct.
Some commentators have rightly pointed out that the Court failed to take into account that the power dynamic that necessarily kicks into gear when a person in authority is involved:
I would have liked the Court to say something more about the fact that the accusedmade these comments while in uniform.
To my mind this elevates the conduct, viewed objectively, beyond the merely inappropriate, and potentially makes it threatening and intimidating. This guy wasn’t a construction worker.
Any thoughts?
***
Update (as a - lenghty - response to Lilith's comment):
The problem is that under our criminal law, we're stuck with "objective" notions of what is threatening when it comes to such offences as criminal harassment and uttering threats. The rationale for this is that the law seeks to punish the offender who had the intention to cause the victim to feel threatened or in danger of death or bodily harm. The courts determine if this intention is present by asking themselves whether the accused's words or actions were designed to instill fear, from his point of view, and not from that of the victim.
This is why we're forced to trust our judges with taking into account the perspective of the women who are most often the victims of such crimes. Unfortunately, this is not always the case. For instance, in 1991, in the McCraw case, the Supreme Court of Canada had to explain why threatening a woman of rape, even when the guys says he finds her pretty or that he's infatuated with her, necessarily constitutes a threat of bodily harm...
The problem is that judges are most often men, who interpret objective legal norm from the vantage of a reasonable man, who unlike a reasonable woman, is usually not afraid to go out alone at night, and usually capable of fending off potential assailants...
I agree that is not the best way to interpret laws that, in practice, seek to punish acts of violence against women. In fact, many feminist legal scholars have demanded that courts turn to a standard of a "reasonable woman" in such cases.
However, I'm not too sure it's a good idea, because I fear it would only allow male judges to introduce sexist notions on how a "reasonable female" should behave in such and such situation into our jurisprudence.
The best solution, I think, would be to appoint more women to the Bench!
A side note: In my opinion, the offenders who harass women or who threaten them, on the other hand, usually understand too well what women find threatening. That's precisely why they harass or threaten them in the first place.
That's also something - unfortunately - they understand almost instinctively, something they understand better than the judges who are called to rule their case.
Tuesday, January 8, 2008
Unhappy Valentines
(Pun definitely intended.)
A Mississippi court awarded a man $754,500 in damages against his wife's lover for "stolen affections" and loss of consortium (i.e. his wife's sexual "services").
The ex-lover apparently attempted to challenge the constitutionality of the law, on the ground that it is based on the "medieval" notion that a woman is the property of her husband, but the law was upheld.
***
Update (2008/01/09):
For those who are not familiar with the term, consortium was one of the three heads under which a plaintiff could claim moral damages. (These categories of moral injury have lost their importance in Québec civil law.)
The others heads were solatium (i.e. grief) and servitium (i.e. the loss of the domestic services of the plaintiff's wife).
It is unclear whether women could claim damages for loss of consortium. In my humble opinion, it would have been unlikely, as married women, lacking legal capacity, could not sue on their own, and had to do so via their husband.
This reminds me of a Canadian civil liability case from the 50's. The plaintiff was a husband who was suing a hairdresser on his own behalf and on behalf of his wife. His wife had her scalp badly burnt by hair dye products, and had become bald as a result. The husband claimed damages on account of a loss of solatium, because his wife was so disfigured that he could not go out with her in public anymore, and for loss of consortium, because she had become so ugly that he couldn't bring himself to have intercourse with her...
*sigh* How tactful...
A Mississippi court awarded a man $754,500 in damages against his wife's lover for "stolen affections" and loss of consortium (i.e. his wife's sexual "services").
The ex-lover apparently attempted to challenge the constitutionality of the law, on the ground that it is based on the "medieval" notion that a woman is the property of her husband, but the law was upheld.
***
Update (2008/01/09):
For those who are not familiar with the term, consortium was one of the three heads under which a plaintiff could claim moral damages. (These categories of moral injury have lost their importance in Québec civil law.)
The others heads were solatium (i.e. grief) and servitium (i.e. the loss of the domestic services of the plaintiff's wife).
It is unclear whether women could claim damages for loss of consortium. In my humble opinion, it would have been unlikely, as married women, lacking legal capacity, could not sue on their own, and had to do so via their husband.
This reminds me of a Canadian civil liability case from the 50's. The plaintiff was a husband who was suing a hairdresser on his own behalf and on behalf of his wife. His wife had her scalp badly burnt by hair dye products, and had become bald as a result. The husband claimed damages on account of a loss of solatium, because his wife was so disfigured that he could not go out with her in public anymore, and for loss of consortium, because she had become so ugly that he couldn't bring himself to have intercourse with her...
*sigh* How tactful...
Monday, December 10, 2007
Quote of the Day
From Me Julie Latour, former Bâtonnière du Barreau de Montréal, on the assumption that career women necessarily favour motherhood and recognition at home over professional ambition, and that men are wired to do the opposite:
Le Blackberry a démontré que l’homme professionnel est doté d’un grand talent pour une petite chose difficile à manipuler, qui requiert une attention constante. Pourquoi pas un bébé?
Go read the whole of the speech Me Latour gave at the Barreau de Montréal's conference Pouvoir et Féminité: Oser prendre la première place.
Le Blackberry a démontré que l’homme professionnel est doté d’un grand talent pour une petite chose difficile à manipuler, qui requiert une attention constante. Pourquoi pas un bébé?
Go read the whole of the speech Me Latour gave at the Barreau de Montréal's conference Pouvoir et Féminité: Oser prendre la première place.
In the News: Robert Pickton found guilty of the 2nd degree murder of six women
The Globe and Mail has more on the verdict.
The six women disappeared from Vancouver's infamous Downtown Eastside between August 1997 and December 2001. Their names were Sereena Abotsway, Andrea Joesbury, Mona Wilson, Georgina Papin, Brenda Wolfe and Marnie Frey.
Robert Pickton has been charged with, and will be prosecuted for the murders of 20 other women.
The six women disappeared from Vancouver's infamous Downtown Eastside between August 1997 and December 2001. Their names were Sereena Abotsway, Andrea Joesbury, Mona Wilson, Georgina Papin, Brenda Wolfe and Marnie Frey.
Robert Pickton has been charged with, and will be prosecuted for the murders of 20 other women.
Friday, December 7, 2007
Jack and Jill go to law school... (Jack should pay attention.)
An argument, not too long ago:
- "The accused could not raise the defence of mistaken belief in consent because he had failed to take reasonable steps to ascertain whether the complainant was consenting.
- "The complainant did consent. She willingly followed him to his place...
- "BUT THAT DOESN'T MEAN SHE WANTED TO SLEEP WITH HIM!
- "It was 2 in the morning...
- "It still doesn't mean anything!"
*sigh*
***
The argument above (which genuinely took place) is symptomatic of two problems with the application of the criminal law of sexual assault.
First, it shows a very frustrating lack of understanding, among lawpeople, of the distinction between the notion of "consent" to sexual activity, and of "mistaken belief in consent".
Secondly, it constitutes evidence that far too many people still entertain sexist attitudes towards sexual assault, sexual offenders and sexual assault victims. Such beliefs are sometimes, as we'll see later on, borderline delusional, and unfortunately, endorsed by law students, law professors, lawyers and *ugh* judges.
***
The argument excerpted above arose over a hypothetical about sexual assault and, more precisely, about the so-called defence of "mistaken belief in consent".
It involved a man (let's call him Jack) who meets a woman one night (we'll call her Jill). They have drinks and start chatting. The conversation quickly turns to sex, and both people describe various sexual acts. At about 2 am, Jack and Jill decide to go to Jack's place. When they get there, there's a second man (say, Joe) waiting for them. Jill feels uncomfortable and repeatedly asks Joe to leave. He refuses. Jill is scared and eventually submits to the sexual acts Jack and Joe ask her to perform. Jill files a complaint, and Jack and Joe are charged with sexually assaulting Jill.
The question is: Can the accused raise the defence of "mistaken belief in consent"?
Thus, the essential elements of the actus reus for the offence of sexual assault are the following:
- "The accused could not raise the defence of mistaken belief in consent because he had failed to take reasonable steps to ascertain whether the complainant was consenting.
- "The complainant did consent. She willingly followed him to his place...
- "BUT THAT DOESN'T MEAN SHE WANTED TO SLEEP WITH HIM!
- "It was 2 in the morning...
- "It still doesn't mean anything!"
*sigh*
***
The argument above (which genuinely took place) is symptomatic of two problems with the application of the criminal law of sexual assault.
First, it shows a very frustrating lack of understanding, among lawpeople, of the distinction between the notion of "consent" to sexual activity, and of "mistaken belief in consent".
Secondly, it constitutes evidence that far too many people still entertain sexist attitudes towards sexual assault, sexual offenders and sexual assault victims. Such beliefs are sometimes, as we'll see later on, borderline delusional, and unfortunately, endorsed by law students, law professors, lawyers and *ugh* judges.
***
The argument excerpted above arose over a hypothetical about sexual assault and, more precisely, about the so-called defence of "mistaken belief in consent".
It involved a man (let's call him Jack) who meets a woman one night (we'll call her Jill). They have drinks and start chatting. The conversation quickly turns to sex, and both people describe various sexual acts. At about 2 am, Jack and Jill decide to go to Jack's place. When they get there, there's a second man (say, Joe) waiting for them. Jill feels uncomfortable and repeatedly asks Joe to leave. He refuses. Jill is scared and eventually submits to the sexual acts Jack and Joe ask her to perform. Jill files a complaint, and Jack and Joe are charged with sexually assaulting Jill.
The question is: Can the accused raise the defence of "mistaken belief in consent"?
***
First, a little legal background...
In order for a person charged with sexual assault to be found guilty, the Crown must prove beyond reasonable doubt certain facts that constitute the material components of the culpable act (i.e. the actus reus) and the facts that constitute the intentional components of the crime (i.e. the mens rea).Thus, the essential elements of the actus reus for the offence of sexual assault are the following:
- The accused applied a force on the complainant (any type of touching, albeit very slight);
- The force was applied in a sexual manner, or the touching had a sexual connotation (notwithstanding which part of the complainant's body was touched, or which part of the accused's body touched the victim);
- The victim did not consent to the touching (i.e. she subjectively did not want the touching to happen).
The mens rea, or culpable intention, for sexual assault only has one element. Here, the Crown only needs to prove that the accused knew that the complainant was not consenting. (The Crown's burden will also be fulfilled if it is established that the accused was reckless or wilfully blind as to the possibility that the victim was not consenting.)
Once the Crown has proven all the elements of the actus reus and of the mens rea beyond a reasonable doubt, the accused will be found guilty unless he can negate one of these essential elements.
That's what is meant in this case by "defence".
The two most common defences with respect to sexual assault (besides, of course, "I never touched her") are the defence of consent and the defence of mistaken belief in consent. In the former case, the accused will try to negate the victim's non-consent, by adducing evidence that she had in fact consented to the sexual activity. In the latter case, the accused will seek to demonstrate that he sincerely thought that he believed that the complainant had consented.
For the defence of mistaken belief in consent to be admissible, the accused's belief must be sincere, and based on reasonable grounds. Moreover, an accused can't invoke it when his belief arises from his voluntary intoxication, or when he did not take any reasonable steps to ascertain whether or not the complainant consented.
That's not too complicated, right?
Yet, many people who approach sexual assault cases similar to the hypothetical above tend to confuse the two defences. For instance, an accused will say "she was consenting, because she went to my place late at night, and earlier on we had talk about sex together".
This is often - mistakenly - labelled as a defence of consent. It's not.
Consent is a subjective notion. The only one who can testify as to whether the complainant had consented to the acts are the complainant herself. It's an inquiry into the complainant's mind. If the trier of facts finds her testimony to be credible, he must conclude that no consent was given.
As the late Lamer C.J.C. once clearly explained:
[T]he issue of mistaken belief in consent should also be submitted to the jury in all cases where the accused testifies attrial that the complainant consented. The accused's testimony that the complainant consented must be taken to mean that he believed that the complainant consented.
R. v. Bulmer, [1987] 1 S.C.R. 782, at par. 24.
[Emphasis added.]
Thus, when the accused (or another witness for the defence) claims that the victim had consented to the acts because she followed him home, or she was drunk, and whatnot, we're not talking about what was going on in her mind at the time. We're going through the accused's own reasoning about what he perceived to be the complainant's mindset.
It might not seem to be of great importance at first glance, but if you were raped and your assailant got away with it, would you prefer that the judgment say that you had in fact consented, or that he was just stupid and made a mistake.
While I find the latter possibility appalling, I must acknowledge that stupidity is not - yet - a criminal offence. On the other hand, being told, despite your testimony to the contrary, and all the troubles you've gone through to bring your attacker to trial, that you had in fact consented is paternalistic and incredibly insulting.
***
The second thing that pisses me off regarding how (far too) many people discuss sexual assault is that they view it from a fundamentally patriarchal and heterosexist standpoint.
The current state of the law of sexual assault in Canada, when it comes to the issue of consent, is clear: consent is an essentially subjective notion, and, not only does "no means no", but "only yes means yes".
Therefore, even though, in a court of law, the Crown still has to establish the victim's non-consent (instead of the accused having to establish that the complainant had consented), the law does not assume that the default state of a woman's mind towards sexual activity is a big fat, unequivocal "yes".
In other words, the law does not treat women as if we were walking around in a state of perpetual consent - to anything, anytime, with anyone. *shrug* Thus, unless a woman expresses her consent to sexually activity (by unequivocal words or conduct), the iniator of the sexual activity in question must take reasonable steps to ascertain whether the woman actually consents.
Otherwise, if the woman was not, in fact, consenting, the initiator could not invoke the defence of mistaken belief in consent.
Still with me?
So this is how it works - well, in theory, that is...
But in practice, judgments tend to stray from this pro-feminist reasoning, and revert to the use of sexist premises to infer either consent or a mistaken belief.
For instance, my interlocutor, in the discussion excerpted above, readily assumed that the fact that a woman talks about sex with a man, and willingly follows him to his place late at night necessarily implies that she had thereby given him permission to engage in whatever sex acts he might think of.
This reasoning also implies that all women would want sex with any man, in any conditions, at all times, and that all women are heterosexual.
Well, uh um... *puts on white lab coat and nerdy glasses* Strong empirical data collected from millions of women around the globe for a gazillion years has shown that these premises are not true.
I know. What a shocker. The fact is that inferences such as this one are simply fundamentally sexist.
Take the same situation, but replace Jill with a Joe.
So Jack meets another guy, Joe. They have drinks. They talk about sex. Joe follows Jack to his place, at 2 in the morning. If Jack then sexually attacks Joe, will anyone really make the argument that it's obvious that Joe had consented, because he had a prior discussion about sex with his assailant, and had willingly followed him to his place at night?
No. Because our patriarcal society does not assume that men are sexually available to other men on a permanent basis. Patriarchy would intrepret the relationship between Jack and Joe as asexual and friendly, in a frat-boyish way.
Patriarchy, on the other hand, presupposes that men and women cannot interact in a way that is simply asexual and friendly. If a woman responds to the attention of a man by doing anything short of yelling at him to stay away from her, or slapping him, then she necessarily has some womanly sexual feelings for him.
Patriarchy does not take into account that women are not sex-bots, that we have free will and individual preferences. A patriarcal interpretation of the law of sexual assault on the first "Jack and Jill" hypothetical does not take into account, for instance, the fact that Jack had bad breath and greasy hair, that Jill was menstruating or that she had forgotten her pill that day.
Nor does it take into account the proven fact that women do often talk about sex in a sometimes quite frat-boyish sort of way, and that, being free of their movements and not submitted to a Gileadean curfiew, they are free to be out of their home at night and visit whomever they like.
And patriarchy being concerned about the preservation of male privilege, it does not place the onus on the male initiator to go beyond those sexist assumptions, challenge the myth of female sexual availability and simply make sure that she really agrees to engage in the sexual activity in question.
Is this really so much to ask?
(For the record - and before being labelled as a man-hater - there are plenty of men out there who are considerate and man enough to make sure their partner is as willing as they are, and who frown upon their fellow males who don't.)
***
I think it would be interesting to see how sexual assault cases involving a lesbian victim and a male accused, and where the defence of mistaken belief in consent was invoked, were treated by the courts.
Unfortunately, I haven't found any so far. (Help, anyone?)
Tuesday, December 4, 2007
The opposite end of the sexual objectification spectrum
Like many other things in life, the degree and kind of the sexual objectification of women varies along a spectrum of behaviours and attitudes.
At one extremity of the spectrum, it could fairly be said that you'd find pornography and prostitution. At the other end, you'll find very repressive and proprietary attitudes towards women based on women's purported sexual nature.
In a very interesting piece, Holly at Feministe, writes about a ultra-orthodox Jewish group in Israel, who take religious teachings concerning modesty to an extreme and ask that women wear Taliban-style burqas.
“The whole of a woman is genitalia. It is forbidden for a man, other than your husband to see you.”
Go read it.
At one extremity of the spectrum, it could fairly be said that you'd find pornography and prostitution. At the other end, you'll find very repressive and proprietary attitudes towards women based on women's purported sexual nature.
In a very interesting piece, Holly at Feministe, writes about a ultra-orthodox Jewish group in Israel, who take religious teachings concerning modesty to an extreme and ask that women wear Taliban-style burqas.
“The whole of a woman is genitalia. It is forbidden for a man, other than your husband to see you.”
Go read it.
Monday, November 26, 2007
Former Chief Justice of Canada dies
(The late Right Honourable Antonio Lamer, C.J.C.)The Right Honourable Antonio Lamer, former Chief Justice of the Supreme Court of Canada, died last Saturday.
The Right Honourable Antonio Lamer, formerly a justice and Chief Justice of the Supreme Court of Canada, passed away in Ottawa on November 24, 2007 after a prolonged illness. Born in Montreal, Quebec, Chief Justice Lamer served in the Royal Canadian Artillery and in the Canadian Intelligence Corps. In 1956, he graduated in law from the Université de Montréal. The following year, he was called to the Bar of Quebec. He practised law at the firm of Cutler, Lamer, Bellemare and Associates and was a full professor in the Faculty of Law, Université de Montréal. In 1969, Chief Justice Lamer was appointed to the Quebec Superior Court. In 1978, he was elevated to the Quebec Court of Appeal.
Appointed to the Supreme Court of Canada in 1980, Antonio Lamer was named the 16th Chief Justice of Canada in 1990. He retired from the Court in 2000.
Chief Justice Beverley McLachlin, on behalf of the members of the Supreme Court of Canada, mourned Chief Justice Lamer's passing, "Antonio Lamer was an eminent jurist, and a fierce defender of the independence of the judiciary. He served as a justice of the Supreme Court of Canada and as Chief Justice of Canada during an important period of Canadian history. He was a forceful advocate for the rights enshrined in the Canadian Charter of Rights and Freedoms. His decisions left an indelible mark on both the law and Canadian society. His presence and passion for the law will be sorely missed. Members and employees of the Court extend their deepest condolences to Chief Justice Lamer's wife, the Honourable Danièle Tremblay-Lamer, and his family."
Former Chief Justice Antonio Lamer will lie in repose in the Grand Hall of the Supreme Court of Canada on Wednesday, November 28, 2007 from 2:30 p.m. to 5:00 p.m. for the public to pay their respects.
A religious ceremony will be held at the Marie-Reine-du-Monde Cathedral in Montreal on Friday, November 30, 2007 at 1:00 p.m. The family will receive visitors from 7:00 p.m. to 10:00 p.m. on Thursday, November 29, 2007, and from 9:00 a.m. to 11:30 a.m. on Friday, November 30, 2007, at the Centre funéraire Côte-des-Neiges, 4525 Chemin de la Côte-des-Neiges, in Montreal.
A private memorial ceremony by invitation only will be held at the Supreme Court of Canada on Monday, December 3, 2007 at 3:00 p.m.
***
One of my all-time favourite quotes from Lamer C.J.C.:
"[I]n my view the issue of mistaken belief in consent should also be submitted to the jury in all cases where the accused testifies attrial that the complainant consented. The accused's testimony that the complainant consented must be taken to mean that he believed that the complainant consented."
[Emphasis added.]
R. v. Bulmer, [1987] 1 S.C.R. 782, at par. 24.
***
For more information on Lamer C.J.C.'s life and legacy:
- Official SCC bio;
- Wikipedia bio.
Meanwhile, in France...
A recent French study showed that only 8% of victims of domestic violence eventually complain to the authorities.
In reaction to this finding, French lawmakers enacted new measures to curb domestic violence and encourage women to report it to the police.
But guess what? They're totally useless...
As a matter of fact, some genius came up with this great idea: when a woman report an incident of domestic violence to the police, the perpetrator is given the choice between being prosecuted before a criminal court, or attending 10 hours of conjugal therapy.
*rolls eyes in disbelief*
There's no way such measures can curb domestic violence, when it doesn't even address its genuine roots, and when it's being dismissed as a conjugal and private matter...
In reaction to this finding, French lawmakers enacted new measures to curb domestic violence and encourage women to report it to the police.
But guess what? They're totally useless...
As a matter of fact, some genius came up with this great idea: when a woman report an incident of domestic violence to the police, the perpetrator is given the choice between being prosecuted before a criminal court, or attending 10 hours of conjugal therapy.
*rolls eyes in disbelief*
There's no way such measures can curb domestic violence, when it doesn't even address its genuine roots, and when it's being dismissed as a conjugal and private matter...
16 Days of Activism Against Gender Violence
Yesterday, November 25th, marked the beginning of the annual 16 Days of Activism Against Gender Violence. During this period, organizations and individuals are encouraged to speak up against gender violence, to reflect on the causes of this problem and to propose solutions.
A 16 Days "action kit" is available online here. You can also wear the traditional white ribbon as a sign of support for this cause, and as a sign of remembrance for the victims of the École Polytechnique massacre.
Le Ministère de la Condition féminine du Québec has also launched a publicity campaign about domestic violence, in order to remind people that acts of violence, even where they occur within a relationship, are still criminal acts.
(Click here to watch the video.)
Wednesday, November 21, 2007
Wake up call
Britain celebrated the 40th anniversary of the legalization of abortion, and apparently, nobody cared.
(Except of course, the so-called "pro-life" folks.)
***
It seems it can't be stressed often enough. January 28th, 2008, will mark the 20th anniversary of the decriminalization of abortion in Canada.
Pro-choice people must do something about it. Just so that anti-choicers won't have this special day all to themselves to complain about how many "babies" have been "murdered" in Canada over the past 20 years.
(Except of course, the so-called "pro-life" folks.)
***
It seems it can't be stressed often enough. January 28th, 2008, will mark the 20th anniversary of the decriminalization of abortion in Canada.
Pro-choice people must do something about it. Just so that anti-choicers won't have this special day all to themselves to complain about how many "babies" have been "murdered" in Canada over the past 20 years.
March in support for the Rule of Law in Pakistan
"The Canadian Bar Association (CBA) is joining legal organizations around the world in a show of support for the lawyers and judges of Pakistan, calling for the restoration of the rule of law in that country.
"On Sunday, November 25 in Ottawa, the CBA will be holding a march in solidarity with the defenders of the rule of law in Pakistan. CBA President Bernard Amyot will lead the procession of CBA Bar Leaders, lawyers, law students and other members of the legal community from across Canada. The County of Carleton Law Association is also giving its full support to the march to the steps of the Supreme Court of Canada. Bar Leaders will address the marchers and participants will have the opportunity to sign a petition of support for Pakistan lawyers, judges and the rule of law."
Click here for the details.
"On Sunday, November 25 in Ottawa, the CBA will be holding a march in solidarity with the defenders of the rule of law in Pakistan. CBA President Bernard Amyot will lead the procession of CBA Bar Leaders, lawyers, law students and other members of the legal community from across Canada. The County of Carleton Law Association is also giving its full support to the march to the steps of the Supreme Court of Canada. Bar Leaders will address the marchers and participants will have the opportunity to sign a petition of support for Pakistan lawyers, judges and the rule of law."
Click here for the details.
Sunday, November 18, 2007
Opposite perspectives on sexual assault
Recently in the UK, Conservative MP David Cameron called for more support for sexual assault victims, both at the pre-trial and trial stages, and for "proportionate", i.e. harsher, sentences for rapists. He also requested that the government enact measures to purge society of its "rape culture", so that attitudes and behaviours that trivialize or legitimize sexual assault and the objectification of women be clearly identified as wrong and, to a certain extent, against the law.
Mr Cameron also asked "that the government ... fund public service announcements against rape and cover sexual consent in sex-ed classes."
As Mr Cameron explained:
"It is important that we talk to children, so that years later when they become jurors, they no longer believe the myths of sexual assault: that women and girls are asking for it if they wear particular clothes, or are out late, or are drinking, that it's all their fault."
***
Meanwhile, in Saudi Arabia, a 19 year-old rape victim was sentenced to 90 lashes. Her crime? Being in a secluded place with a man who was not her husband or a relative.
"The young woman’s offense was in meeting a former boyfriend, whom she had asked to return pictures he had of her because she was about to marry another man. The couple was sitting in a car when a group of seven men kidnapped them and raped them both, lawyers in the case told Arab News, a Saudi newspaper.
"The woman and the former boyfriend were originally sentenced to 90 lashes each for being together in private, while the attackers received sentences ranging from 10 months to five years in prison, and 80 to 1,000 lashes each."
The woman's lawyer appealed her sentence, on the ground that it was unusually harsh (the usual sentence for "adultery" being 60 to 80 lashes), and publicly denounced the ruling. As a result, "the court increased the victim’s sentence to 200 lashes and six months in jail", and her lawyer's license was suspended. (He is now facing disciplinary procedures.)
Mr Cameron also asked "that the government ... fund public service announcements against rape and cover sexual consent in sex-ed classes."
As Mr Cameron explained:
"It is important that we talk to children, so that years later when they become jurors, they no longer believe the myths of sexual assault: that women and girls are asking for it if they wear particular clothes, or are out late, or are drinking, that it's all their fault."
***
Meanwhile, in Saudi Arabia, a 19 year-old rape victim was sentenced to 90 lashes. Her crime? Being in a secluded place with a man who was not her husband or a relative.
"The young woman’s offense was in meeting a former boyfriend, whom she had asked to return pictures he had of her because she was about to marry another man. The couple was sitting in a car when a group of seven men kidnapped them and raped them both, lawyers in the case told Arab News, a Saudi newspaper.
"The woman and the former boyfriend were originally sentenced to 90 lashes each for being together in private, while the attackers received sentences ranging from 10 months to five years in prison, and 80 to 1,000 lashes each."
The woman's lawyer appealed her sentence, on the ground that it was unusually harsh (the usual sentence for "adultery" being 60 to 80 lashes), and publicly denounced the ruling. As a result, "the court increased the victim’s sentence to 200 lashes and six months in jail", and her lawyer's license was suspended. (He is now facing disciplinary procedures.)
Friday, October 26, 2007
Why the US need to change the legal definition of "consent" to sexual activity
The Georgia Supreme Court recently declared that a sentence of 10 years' imprisonment for sexual assault on a child was unconstitutional, as it was so harsh as to amount to "cruel and unusual punishment".
This case has received more than its share of publicity over the past few months.
The accused in this case was Genarlow Wilson, aged 17 at the time of the events. Mr. Wilson and a few of (adult) friends of his were having a New Year's Eve party in a motel room. They had invited over a number of underaged girls, including the victim, who was then 15 years old. It was reported that the lot had consumed more than their fair share of booze and drugs.
The girls were then sollicited to perform various sex acts on many of the young men present, while their buddies would film the scene. A video showed Mr. Wilson receiving oral sex from the 15 year old girl, so there was no debate about whether or not the sexual activity happened . (Oh, and apparently, the accused subsequently bragged about what had happened at the party at school.)
The video also showed Mr. Wilson having sex on a bathroom floor with another girl, who looked sleepy and was visibly seriously intoxicated at the time. On the video, she did not ask Mr. Wilson to stop (but then again, the video didn't show any verbal interaction between the two.) The 17 year-old girl, who had waken up naked and confused the next morning, immediately reported the events to the police, and claimed that she had been raped.
Eventually, Mr. Wilson was charged with aggravated child molestation, found guilty and sentenced to 10 years' imprisonment. Now, the big debate in the media was about the fact that this offence, in its legal definition, did not take into account the fact that the 15 year-old victim was "consenting", that the victim and the accused were so close in age, that it was "just" a fellatio, and that the accused was a promising athlete and a "good boy".
(The State of Georgia, subsequent to the outcome of this case, changed the formulation of the offence so as to take the victim's "consent" into account.)
I have a few issues with the media treatment of this case, and with the recent quashing of Mr. Wilson's sentence.
First, I would just like to clarify that, although I agree with the Conservatives' proposition that the age of consent to sexual contact with adults be raised from 14 to 16, I also think it's stupid to seek to criminalize sexual contacts among (consenting) teenagers. Let's face it: when you're 16, horny and a just typically rebellious, you're gonna have sex if you want to, whether your parents, the local clergyman, your teachers or the law say otherwise.
However, sexual contacts, even among teenagers, must always be consensual.
Secondly, some people seem to be labouring under the delusion that when there's no penetration, when it's "just" a fellatio, it's really not that bad, and the situation should not give rise to criminal charges. Well, if that's your opinion, you're wrong. If you can't understand why having some drunken guy's cock shoved down your throat is morally wrong enough to be criminalized, then quit reading now.
Thirdly, it's no secret that most American jurisdictions have fucked-up definitions of what constitutes "consent" to sexual activity. While the notion of "consent" colloquially refers to something that a person genuinely wants, or to a free and enlightened decision (such as in health or contractual matters, for instance), "consent" to sexual activity in most American criminal statutes (as well as under the old, i.e. pre-1985, version of our own Criminal Code) is equated to passivity, lack of resistance, and the absence of the use (additional) physical force or the threat thereof.
This way of thinking is stupid and unrealistic. Basically, it means that unless you're beaten or threatened and you attempt to (physically) resist the assault, you will be deemed to have consented to having sex inflicted upon you. It completely disregards the fact that, as in this case, a person will not protest or resist because she is smaller than her assailants, outnumbered, confined, scared, or intoxicated. In situations such as those involved in the Wilson case, most females would not be foolish enough to think they can simply walk away or refuse to perform the acts, so that most criminally-inclined males would not have to resort to additional physical violence anyways.
St. Maria Goretti might have become a saint for choosing the opposite route, but most women do not envy her fate.
(Why to I keep saying "additional" physical violence? Um... It might have to do with the fact that having someone madly thrust inside you against your will is already violent and painful enough in and of itself.)
In my opinion, even if Mr. Wilson had been charged under the new version of the offence and that the victim's consent had been part of the equation, he might as well have been found guilty anyways, because it's very likely that the young woman's consent was viciated by the coercitive nature of the circustances.
Finally, even if the prosecution had not been able to prove beyond reasonable doubt that Mr. Wilson's 15 year-old victim had given her free and enlightened consent, he and his buddies should still have been convicted for production, distribution and possession of child pornography.
I say 10 years' imprisonment was not too harsh. It sounds just right to me.
This case has received more than its share of publicity over the past few months.
The accused in this case was Genarlow Wilson, aged 17 at the time of the events. Mr. Wilson and a few of (adult) friends of his were having a New Year's Eve party in a motel room. They had invited over a number of underaged girls, including the victim, who was then 15 years old. It was reported that the lot had consumed more than their fair share of booze and drugs.
The girls were then sollicited to perform various sex acts on many of the young men present, while their buddies would film the scene. A video showed Mr. Wilson receiving oral sex from the 15 year old girl, so there was no debate about whether or not the sexual activity happened . (Oh, and apparently, the accused subsequently bragged about what had happened at the party at school.)
The video also showed Mr. Wilson having sex on a bathroom floor with another girl, who looked sleepy and was visibly seriously intoxicated at the time. On the video, she did not ask Mr. Wilson to stop (but then again, the video didn't show any verbal interaction between the two.) The 17 year-old girl, who had waken up naked and confused the next morning, immediately reported the events to the police, and claimed that she had been raped.
Eventually, Mr. Wilson was charged with aggravated child molestation, found guilty and sentenced to 10 years' imprisonment. Now, the big debate in the media was about the fact that this offence, in its legal definition, did not take into account the fact that the 15 year-old victim was "consenting", that the victim and the accused were so close in age, that it was "just" a fellatio, and that the accused was a promising athlete and a "good boy".
(The State of Georgia, subsequent to the outcome of this case, changed the formulation of the offence so as to take the victim's "consent" into account.)
I have a few issues with the media treatment of this case, and with the recent quashing of Mr. Wilson's sentence.
First, I would just like to clarify that, although I agree with the Conservatives' proposition that the age of consent to sexual contact with adults be raised from 14 to 16, I also think it's stupid to seek to criminalize sexual contacts among (consenting) teenagers. Let's face it: when you're 16, horny and a just typically rebellious, you're gonna have sex if you want to, whether your parents, the local clergyman, your teachers or the law say otherwise.
However, sexual contacts, even among teenagers, must always be consensual.
Secondly, some people seem to be labouring under the delusion that when there's no penetration, when it's "just" a fellatio, it's really not that bad, and the situation should not give rise to criminal charges. Well, if that's your opinion, you're wrong. If you can't understand why having some drunken guy's cock shoved down your throat is morally wrong enough to be criminalized, then quit reading now.
Thirdly, it's no secret that most American jurisdictions have fucked-up definitions of what constitutes "consent" to sexual activity. While the notion of "consent" colloquially refers to something that a person genuinely wants, or to a free and enlightened decision (such as in health or contractual matters, for instance), "consent" to sexual activity in most American criminal statutes (as well as under the old, i.e. pre-1985, version of our own Criminal Code) is equated to passivity, lack of resistance, and the absence of the use (additional) physical force or the threat thereof.
This way of thinking is stupid and unrealistic. Basically, it means that unless you're beaten or threatened and you attempt to (physically) resist the assault, you will be deemed to have consented to having sex inflicted upon you. It completely disregards the fact that, as in this case, a person will not protest or resist because she is smaller than her assailants, outnumbered, confined, scared, or intoxicated. In situations such as those involved in the Wilson case, most females would not be foolish enough to think they can simply walk away or refuse to perform the acts, so that most criminally-inclined males would not have to resort to additional physical violence anyways.
St. Maria Goretti might have become a saint for choosing the opposite route, but most women do not envy her fate.
(Why to I keep saying "additional" physical violence? Um... It might have to do with the fact that having someone madly thrust inside you against your will is already violent and painful enough in and of itself.)
In my opinion, even if Mr. Wilson had been charged under the new version of the offence and that the victim's consent had been part of the equation, he might as well have been found guilty anyways, because it's very likely that the young woman's consent was viciated by the coercitive nature of the circustances.
Finally, even if the prosecution had not been able to prove beyond reasonable doubt that Mr. Wilson's 15 year-old victim had given her free and enlightened consent, he and his buddies should still have been convicted for production, distribution and possession of child pornography.
I say 10 years' imprisonment was not too harsh. It sounds just right to me.
Monday, October 15, 2007
One step forward, one step back...
On the one hand, a post on the omnipresence in pornography of degrading and violent behaviour.
On the other hand, a case digest titled "degrading and rude behaviour not necessarily sexual harassment."
***
So, if a judge says to a female defence lawyer, in open court, that she has a "nice butt", does that constitute sexual harassment? Or is it just "degrading and rude behaviour"?
***
On a related topic, here is an article discussing recent sexual harassment cases in the U.S. and arguing that the fact that the complainants won in those cases is attributable to a "change of climate" in the workplace, in that corporate milieus in the U.S. are becoming increasingly less tolerant towards such behaviour.
The article also includes a list of things you can do if you are sexually harassed in a professional setting.
This is a fine and thorough list, but when you're confronted with someone who physically threatens you, who touches you without your consent, who makes you feel like you're there for his personal (sexual) enjoyment, and when this person is a position of authority or power vis-à-vis you, such that you might lose your job or get dragged in the mud for complaining about the unwanted behaviour, it begs the question: to report or not to report?
As with many other things, it is easier said than done. Not that women lack reasons to come forward. But still... Having to balance the shame, embarrassment and personal risk to one's reputation, with the guilt that the perpetrator might strike again, and prey on another victim, is an unbearable exercise.
***
"See, I don't know what to do.
"I keep having fantasies about leaving her dictaphone under the pillow. Or following her when she goes to work.
"I've been lying about where I'm going, just in case I can bump into her..."
What would you do it was the case? What if your weren't sure it was so? Would you risk everything you have, everything you have become, for the (potentially remote) possibility that someone you don't know might suffer the same fate?
***
In a class discussion on the difficulties created by our legal system that deterred women from reporting sexual assault (among others, the fact that in many circumstances, evidence of a complainant's sexual history will be considered relevant in court, which allows for the victim to be cross-examined on her past sexual behaviour), one of my professors (an older man) boldly stated that reporting sexual assault did not depend on such legal hurdles, but rather on a victim's individual bravery.
He then went on to say that people in Iraq had gone out to vote, even though they were risking their lives in the process. He said that if the Iraqi people who had chosen to vote could be so brave, then why wouldn't sexual assault victims be able to come forward. After all, it is not, he said, as if their lives were at risk.
When I heard that comment, my heart sank. I felt as if he had just called one in four women in the classroom cowards.
Reporting is an individual decision. Not reporting is not an act of cowardice, but rather an attempt at self-preservation.
On the other hand, a case digest titled "degrading and rude behaviour not necessarily sexual harassment."
***
So, if a judge says to a female defence lawyer, in open court, that she has a "nice butt", does that constitute sexual harassment? Or is it just "degrading and rude behaviour"?
***
On a related topic, here is an article discussing recent sexual harassment cases in the U.S. and arguing that the fact that the complainants won in those cases is attributable to a "change of climate" in the workplace, in that corporate milieus in the U.S. are becoming increasingly less tolerant towards such behaviour.
The article also includes a list of things you can do if you are sexually harassed in a professional setting.
This is a fine and thorough list, but when you're confronted with someone who physically threatens you, who touches you without your consent, who makes you feel like you're there for his personal (sexual) enjoyment, and when this person is a position of authority or power vis-à-vis you, such that you might lose your job or get dragged in the mud for complaining about the unwanted behaviour, it begs the question: to report or not to report?
As with many other things, it is easier said than done. Not that women lack reasons to come forward. But still... Having to balance the shame, embarrassment and personal risk to one's reputation, with the guilt that the perpetrator might strike again, and prey on another victim, is an unbearable exercise.
***
"See, I don't know what to do.
"I keep having fantasies about leaving her dictaphone under the pillow. Or following her when she goes to work.
"I've been lying about where I'm going, just in case I can bump into her..."
What would you do it was the case? What if your weren't sure it was so? Would you risk everything you have, everything you have become, for the (potentially remote) possibility that someone you don't know might suffer the same fate?
***
In a class discussion on the difficulties created by our legal system that deterred women from reporting sexual assault (among others, the fact that in many circumstances, evidence of a complainant's sexual history will be considered relevant in court, which allows for the victim to be cross-examined on her past sexual behaviour), one of my professors (an older man) boldly stated that reporting sexual assault did not depend on such legal hurdles, but rather on a victim's individual bravery.
He then went on to say that people in Iraq had gone out to vote, even though they were risking their lives in the process. He said that if the Iraqi people who had chosen to vote could be so brave, then why wouldn't sexual assault victims be able to come forward. After all, it is not, he said, as if their lives were at risk.
When I heard that comment, my heart sank. I felt as if he had just called one in four women in the classroom cowards.
Reporting is an individual decision. Not reporting is not an act of cowardice, but rather an attempt at self-preservation.
Wednesday, October 10, 2007
Withdrawals...
In 2006, the Maryland Court of Special Appeals answered 'no' to the question "If a female consents to sex initially, and, during the course of the sex act to which she consented, for whatever reason, she changes her mind, and the man continues until climax, does the result constitute rape?"
The incident at issue involved an 18 year-old woman who was taken by car, at night, to a secluded location by two vague male acquaintances (both aged 16 at the time). She was first raped by the other accused Wilson (who was eventually found guilty of rape) on the back seat of the car. The accused in this case, Baby, then asked his friend "Will you let me hit it?", referring to the young woman. He then told the victim that he "wouldn't want to rape her." (Baby admitted to making both utterances.) The victim then said "yes" to sexual intercourse with him, on the condition that he pull out if it hurt her (logically: upon her saying so).
Baby then proceeded to vaginally penetrating the woman, thrusting inside her. She then said 'no' and told him to stop, because it hurt. It was admitted in this case, that, at this point, the accused continued thrusting inside her for 10 seconds before he ejaculated and pulled out.
Although Baby was convicted of rape at trial and sentenced to 15 years' imprisonment, his conviction was overturned by the Maryland Court of Special Appeals. The appeal judgment not only rejected the prosecution's argument that the circumstances (e.g. the victim having been raped for a first time moments before, the secluded location, the victim being outnumbered by her assailants, her subjective fear, Baby's veiled threat of additional physical violence) in themselves were coercitive enough to nullify the woman's "consent."
Relying on the Battle case, it went on to say that, when it comes to rape, common law tells us that it's really about the vindication of the loss of a woman's value, as a chattel, to her legal owner, that is to say, her father or husband.
(Uh hum... 'Rings a bell, anyone?)
Thus, the fact that a woman withdraws her consent to sexual intercourse once it has started is irrelevant to whether or not the intercourse amounts to rape, because beyond the initial penetration, once the woman has been deflowered, there is nothing more to lose, and therefore nothing to be further punished.
Pretty depressing, eh?
The good news is that this Middle-Ages ruling has been heard on appeal last week.
Let's just hope that the Court of Appeals will yield to 21st century concepts (such as "women are people too and have their say on the terms and conditions under which they engage in sexual activity") and restore Baby's conviction and sentence.
On the other hand, I'm disappointed that the prosecution's argument seems limited to the assertion that the intercourse constituted rape because "[y]ou clearly have the element of force, you have the resistance by the victim, the victim was quite clear that it was hurting, that she wanted him to stop."
By raising this argument, the prosecution emphasizes the importance of physical coercion and legitimize the requirement that the victim attempted to resist the rape, as legal markers for the victim's lack of consent, rather than focusing on what really matters in sexual assault cases, i.e. the victim's actual, subjective feelings towards the sexual activity.
Sexual assault, as defined under Maryland law, and as acknowledged by the prosecution's argument, is not about punishing the accused's disregard for another person's subjective preference about whether or not she wants to have sex. When the law defines a woman's consent to sexual activity as something else than her own subjective state of mind, for instance, by defining "consent" as lack of "adequate" (read: from a male point of view) resistance, or as passivity or submission, it obviously does not give a damn about whether or not the woman being penetrated is actually willing or not.
In that context, it does not even make sense to be talking about a woman's withdrawing her consent.
What I would have appreciated from the prosecution in the current Baby appeal is a genuine argument to the effect that women, as human beings, deserve the right to decide of the conditions under which they will engage in any type of sexual activity. Men do. (Obviously.) The right to the legal recognition of women's sexual agency is nothing short of a fundamental equality requirement.
For such recognition to be possible, the laws of Maryland must be amended so as to make the legality of sexual acts absolutely conditional to both partners' subjective consent. Therefore, the definition of "consent" as the absence of extrinsic physical violence, lack of sufficient physical resistance, submission, or passivity must be thrown out, and replaced by a notion of "actual consent", which consists of one's own subjective feelings.
***
The Baltimore Sun published an article about the Baby appeal. It's not really informative for those who are not already familiar with the case, given that it considerably distorts the facts of the case.
What is most disturbing though are the comments to the article. They reveal a shocking resistance to the idea that a woman has the right to withdraw her consent to sexual activity, and that doing so does not make her a whore or a liar, nor does it strip her of her rights to vindicate the attempt on her bodily integrity. They also provide a thorough - and disheartening - summary of rape myths and prejudices about women who file complains for sexual assault. (Including the suggestion that the victim is the one who should have been prosecuted for rape, given that she had "lure" two underaged males into sex.)
"Either you want it or you don't. If there is a question mark, say no up front. Or wait. After penetration, unless under violent circumstances, it is just not valid. Bad performance is not rapeor 3/4 of the population would be in jail. And not the providence of 16 year olds. Strangers, sex and liquor are a very poor combination."
"It is asking alot to even think of accusing someone of rape when you let him enter your body and get within five seconds of climax. By the way they should accuse her of raping him because he was 16 and she was 18."
"Anyone who says yes during sex is in a position where they must consent until it is over. Anyone who says yes then no has less sexual credibility. Those with little to no sexual credibility should be barred from the right to file rape charges period. There are real rapes, the West Virginia torture, a woman who is jumped and kidnapped by three men, and similar such situations where the real rapists need to be thrown into prison so that they themselves can be punished severly. Any case however involving a person who cannot make up their mind should automatically be thrown out because whats to stop them from filing a charge of rape over the decision that it was simply bad sex. Real rapes only in the courtroom, no drunks who said yes at one point during the intercourse and no one who engages in other such acts should be given the right to file charges. Rather they need to punish the accusors who go between yes and no during sex with perjury as they are filing false charges for something they allowed to happen."
***
Many people who commented the Baltimore Sun's article seem to share the view that once a man has penetrated a woman, especially if he is approaching climax, loses his capacity to acknowledge her demands that he stops and to pull out immediately. Such people also seem think that a delay of 10 seconds between the moment when a woman, who is being penetrated, says "no, stop, it hurts" and the moment when the man actually pulls out, is actually quite reasonable, and can be easily justified by the handy "getting-near-climax-has-become-unresponsive-jelly-of-lust-can't-hear-you-until-I-get-off" theory.
But it's not only retrograde, misogynistc jerks who adhere to this view. I have had a serious - and quite awkward - discussion about this issue (as it arises in a sexual assault context) with one of my professors, a brilliant mind and a kind man, who sincerely seem to think that sometimes, even 10 seconds are not enough.
In all fairness, being a woman, I obviously don't have a first hand experience of this, but I remain extremely sceptical about the "I-can't-hear-you-I'm-gonna-come" excuse.
What is certain though is that 10 seconds can seem like a lifetime in certain circumstances. Those who have been raped or sexually assaulted very well know this. (For those who have been lucky enough to have never experienced such a situation, here's a thought: paper sheets, an unknown OB-GYN and a metallic, cold speculum.)
10 seconds of unwanted sex certainly qualifies as full-fledged sexual assault.
***
Since the mid-80's, Canada has - in theory, as least - left the Middle-Ages of sexual assault legislation by (1) replacing the gendered offence of "rape" with the neutral one of "sexual assault", and (2) ditching the unrealistic "objective" notion of "consent" (which was similar, under the common law, to the notion of "consent" as it applies in Maryland) with a subjective view of consent that corresponds to the person's subjective state of mind at the relevant time.
Moreover, the Criminal Code now explicitly provides that there is no consent when someone's, having validly given it earlier on, chooses to withdraw it (s. 273.1(2)(e)).
The incident at issue involved an 18 year-old woman who was taken by car, at night, to a secluded location by two vague male acquaintances (both aged 16 at the time). She was first raped by the other accused Wilson (who was eventually found guilty of rape) on the back seat of the car. The accused in this case, Baby, then asked his friend "Will you let me hit it?", referring to the young woman. He then told the victim that he "wouldn't want to rape her." (Baby admitted to making both utterances.) The victim then said "yes" to sexual intercourse with him, on the condition that he pull out if it hurt her (logically: upon her saying so).
Baby then proceeded to vaginally penetrating the woman, thrusting inside her. She then said 'no' and told him to stop, because it hurt. It was admitted in this case, that, at this point, the accused continued thrusting inside her for 10 seconds before he ejaculated and pulled out.
Although Baby was convicted of rape at trial and sentenced to 15 years' imprisonment, his conviction was overturned by the Maryland Court of Special Appeals. The appeal judgment not only rejected the prosecution's argument that the circumstances (e.g. the victim having been raped for a first time moments before, the secluded location, the victim being outnumbered by her assailants, her subjective fear, Baby's veiled threat of additional physical violence) in themselves were coercitive enough to nullify the woman's "consent."
Relying on the Battle case, it went on to say that, when it comes to rape, common law tells us that it's really about the vindication of the loss of a woman's value, as a chattel, to her legal owner, that is to say, her father or husband.
(Uh hum... 'Rings a bell, anyone?)
Thus, the fact that a woman withdraws her consent to sexual intercourse once it has started is irrelevant to whether or not the intercourse amounts to rape, because beyond the initial penetration, once the woman has been deflowered, there is nothing more to lose, and therefore nothing to be further punished.
Pretty depressing, eh?
The good news is that this Middle-Ages ruling has been heard on appeal last week.
Let's just hope that the Court of Appeals will yield to 21st century concepts (such as "women are people too and have their say on the terms and conditions under which they engage in sexual activity") and restore Baby's conviction and sentence.
On the other hand, I'm disappointed that the prosecution's argument seems limited to the assertion that the intercourse constituted rape because "[y]ou clearly have the element of force, you have the resistance by the victim, the victim was quite clear that it was hurting, that she wanted him to stop."
By raising this argument, the prosecution emphasizes the importance of physical coercion and legitimize the requirement that the victim attempted to resist the rape, as legal markers for the victim's lack of consent, rather than focusing on what really matters in sexual assault cases, i.e. the victim's actual, subjective feelings towards the sexual activity.
Sexual assault, as defined under Maryland law, and as acknowledged by the prosecution's argument, is not about punishing the accused's disregard for another person's subjective preference about whether or not she wants to have sex. When the law defines a woman's consent to sexual activity as something else than her own subjective state of mind, for instance, by defining "consent" as lack of "adequate" (read: from a male point of view) resistance, or as passivity or submission, it obviously does not give a damn about whether or not the woman being penetrated is actually willing or not.
In that context, it does not even make sense to be talking about a woman's withdrawing her consent.
What I would have appreciated from the prosecution in the current Baby appeal is a genuine argument to the effect that women, as human beings, deserve the right to decide of the conditions under which they will engage in any type of sexual activity. Men do. (Obviously.) The right to the legal recognition of women's sexual agency is nothing short of a fundamental equality requirement.
For such recognition to be possible, the laws of Maryland must be amended so as to make the legality of sexual acts absolutely conditional to both partners' subjective consent. Therefore, the definition of "consent" as the absence of extrinsic physical violence, lack of sufficient physical resistance, submission, or passivity must be thrown out, and replaced by a notion of "actual consent", which consists of one's own subjective feelings.
***
The Baltimore Sun published an article about the Baby appeal. It's not really informative for those who are not already familiar with the case, given that it considerably distorts the facts of the case.
What is most disturbing though are the comments to the article. They reveal a shocking resistance to the idea that a woman has the right to withdraw her consent to sexual activity, and that doing so does not make her a whore or a liar, nor does it strip her of her rights to vindicate the attempt on her bodily integrity. They also provide a thorough - and disheartening - summary of rape myths and prejudices about women who file complains for sexual assault. (Including the suggestion that the victim is the one who should have been prosecuted for rape, given that she had "lure" two underaged males into sex.)
"Either you want it or you don't. If there is a question mark, say no up front. Or wait. After penetration, unless under violent circumstances, it is just not valid. Bad performance is not rapeor 3/4 of the population would be in jail. And not the providence of 16 year olds. Strangers, sex and liquor are a very poor combination."
"It is asking alot to even think of accusing someone of rape when you let him enter your body and get within five seconds of climax. By the way they should accuse her of raping him because he was 16 and she was 18."
"Anyone who says yes during sex is in a position where they must consent until it is over. Anyone who says yes then no has less sexual credibility. Those with little to no sexual credibility should be barred from the right to file rape charges period. There are real rapes, the West Virginia torture, a woman who is jumped and kidnapped by three men, and similar such situations where the real rapists need to be thrown into prison so that they themselves can be punished severly. Any case however involving a person who cannot make up their mind should automatically be thrown out because whats to stop them from filing a charge of rape over the decision that it was simply bad sex. Real rapes only in the courtroom, no drunks who said yes at one point during the intercourse and no one who engages in other such acts should be given the right to file charges. Rather they need to punish the accusors who go between yes and no during sex with perjury as they are filing false charges for something they allowed to happen."
***
Many people who commented the Baltimore Sun's article seem to share the view that once a man has penetrated a woman, especially if he is approaching climax, loses his capacity to acknowledge her demands that he stops and to pull out immediately. Such people also seem think that a delay of 10 seconds between the moment when a woman, who is being penetrated, says "no, stop, it hurts" and the moment when the man actually pulls out, is actually quite reasonable, and can be easily justified by the handy "getting-near-climax-has-become-unresponsive-jelly-of-lust-can't-hear-you-until-I-get-off" theory.
But it's not only retrograde, misogynistc jerks who adhere to this view. I have had a serious - and quite awkward - discussion about this issue (as it arises in a sexual assault context) with one of my professors, a brilliant mind and a kind man, who sincerely seem to think that sometimes, even 10 seconds are not enough.
In all fairness, being a woman, I obviously don't have a first hand experience of this, but I remain extremely sceptical about the "I-can't-hear-you-I'm-gonna-come" excuse.
What is certain though is that 10 seconds can seem like a lifetime in certain circumstances. Those who have been raped or sexually assaulted very well know this. (For those who have been lucky enough to have never experienced such a situation, here's a thought: paper sheets, an unknown OB-GYN and a metallic, cold speculum.)
10 seconds of unwanted sex certainly qualifies as full-fledged sexual assault.
***
Since the mid-80's, Canada has - in theory, as least - left the Middle-Ages of sexual assault legislation by (1) replacing the gendered offence of "rape" with the neutral one of "sexual assault", and (2) ditching the unrealistic "objective" notion of "consent" (which was similar, under the common law, to the notion of "consent" as it applies in Maryland) with a subjective view of consent that corresponds to the person's subjective state of mind at the relevant time.
Moreover, the Criminal Code now explicitly provides that there is no consent when someone's, having validly given it earlier on, chooses to withdraw it (s. 273.1(2)(e)).
Thursday, September 27, 2007
Sexual assault is not about the loss of virginity
This is a sad story.
A few weeks ago, a female student was sexually assaulted when she was working late at night in a lab at Carleton University. Her assailant also severely beat her up, leaving her injured and unconscious, and fled with some of her clothes.
The saddest part of the story is that the victim of this heinous assault has contacted the media in order to "set the record straight" on the fact that she was "not raped". As a matter of fact, the young woman, who is Muslim, wants to make clear that her sexual assault did not involve penetration and that she is still a virgin.
"As part of her culture, being a virgin is very important, and, if, all of a sudden, everybody looks at her and says she's not a virgin, she's a lot less desirable as a wife," said Christine Baker, a sexual-assault examiner at the Ottawa Hospital who has been keeping in touch with the victim.
*
I find it hard to believe that in Canada, women are still feeling that ultimate value as human being depends on their being a virgin until marriage, and on their "marriagebility". I am also deeply troubled by the fact that this woman's declaration suggests that she should have to bear any guilt or uncarable shame because she was sexually "accessed" by a man without her consent.
In addition, her concerns for her reputation as a virgin sadly highlight that no matter how heinous and twisted this crime was, and despite the fact that is no question whatsoever as to her complete and obvious lack of consent (having been beaten to the point of unconsciousness before being assaulted), there are people out there who somehow feel that she should feel responsible for her own "depreciation".
The mere fact that this is happening in Canada, in 2007, shows us that we still have a very long way to go in terms of changing people's attitude towards sexual violence and its female victims. I can't believe that we still seem to be grappling with the concept that women are not chattels, to be sold, exchanged or taken.
***
On another note, it should be noted that the young woman in this case is dead right about one thing: just because a penis did not enter your vagina when you were attacked doesn't mean you have not been sexually assaulted, nor does it make things any "better" for you.
Many people - including, I am sad to say, far too many judges who hear sexual assault cases - are still under the impression that "sexual assault" is a lesser, non-penetrative form of rape, and therefore, a lighter criminal offence. It is not.
Sexual assault consists of any type of sexual touching conducted without the person's consent, when the assailant is aware of the other person's lack of consent. Period. One's bodily integrity is not, in the eyes of the law, ultimately linked to one's virginity.
***
However, a distinction between sexual assault and the abrogated offence of rape has to be drawn. While sexual assault simpliciter is punishable by a maximum of 10 years' imprisonment (if prosecuted by way of indictment) or by a maximum of 18 months' imprisonment (if prosecuted by way of summary conviction), the old offence of rape carried a maximum punishment of life's imprisonment (along, in the good old days, with 50 lashes).
When I hear about extremely violent and wanton sexual attacks such as this one, I'm tempted to say: bring back the lash...
A few weeks ago, a female student was sexually assaulted when she was working late at night in a lab at Carleton University. Her assailant also severely beat her up, leaving her injured and unconscious, and fled with some of her clothes.
The saddest part of the story is that the victim of this heinous assault has contacted the media in order to "set the record straight" on the fact that she was "not raped". As a matter of fact, the young woman, who is Muslim, wants to make clear that her sexual assault did not involve penetration and that she is still a virgin.
"As part of her culture, being a virgin is very important, and, if, all of a sudden, everybody looks at her and says she's not a virgin, she's a lot less desirable as a wife," said Christine Baker, a sexual-assault examiner at the Ottawa Hospital who has been keeping in touch with the victim.
*
I find it hard to believe that in Canada, women are still feeling that ultimate value as human being depends on their being a virgin until marriage, and on their "marriagebility". I am also deeply troubled by the fact that this woman's declaration suggests that she should have to bear any guilt or uncarable shame because she was sexually "accessed" by a man without her consent.
In addition, her concerns for her reputation as a virgin sadly highlight that no matter how heinous and twisted this crime was, and despite the fact that is no question whatsoever as to her complete and obvious lack of consent (having been beaten to the point of unconsciousness before being assaulted), there are people out there who somehow feel that she should feel responsible for her own "depreciation".
The mere fact that this is happening in Canada, in 2007, shows us that we still have a very long way to go in terms of changing people's attitude towards sexual violence and its female victims. I can't believe that we still seem to be grappling with the concept that women are not chattels, to be sold, exchanged or taken.
***
On another note, it should be noted that the young woman in this case is dead right about one thing: just because a penis did not enter your vagina when you were attacked doesn't mean you have not been sexually assaulted, nor does it make things any "better" for you.
Many people - including, I am sad to say, far too many judges who hear sexual assault cases - are still under the impression that "sexual assault" is a lesser, non-penetrative form of rape, and therefore, a lighter criminal offence. It is not.
Sexual assault consists of any type of sexual touching conducted without the person's consent, when the assailant is aware of the other person's lack of consent. Period. One's bodily integrity is not, in the eyes of the law, ultimately linked to one's virginity.
***
However, a distinction between sexual assault and the abrogated offence of rape has to be drawn. While sexual assault simpliciter is punishable by a maximum of 10 years' imprisonment (if prosecuted by way of indictment) or by a maximum of 18 months' imprisonment (if prosecuted by way of summary conviction), the old offence of rape carried a maximum punishment of life's imprisonment (along, in the good old days, with 50 lashes).
When I hear about extremely violent and wanton sexual attacks such as this one, I'm tempted to say: bring back the lash...
Wednesday, September 26, 2007
20th Anniversary of "R. v. Morgentaler (1988)"
January 28th, 2008, will mark the 20th anniversary of the judgment of the Supreme Court of Canada in R. v. Morgentaler, [1988] 1 S.C.R. 30, which decriminalized abortion in Canada.
Since then, Canadian women have lived in a legal vacuum with respect to abortion (i.e. there are no laws whatsoever that currently restrict the legality or timing of abortive procedures). So far, the staus quo seems to be working for us.
However, the reproductive rights of Canadian women now face increasingly alarming threats - particularly since the Conservatives came to power - and having to do, namely, with access to abortion.
Therefore, I think it is of vital importance that women's organizations and feminist groups or individuals unite and show, on January 28th, that we are not willing to go back 20 years when it comes to our rights to reproductive freedom and bodily integrity.
Since then, Canadian women have lived in a legal vacuum with respect to abortion (i.e. there are no laws whatsoever that currently restrict the legality or timing of abortive procedures). So far, the staus quo seems to be working for us.
However, the reproductive rights of Canadian women now face increasingly alarming threats - particularly since the Conservatives came to power - and having to do, namely, with access to abortion.
Therefore, I think it is of vital importance that women's organizations and feminist groups or individuals unite and show, on January 28th, that we are not willing to go back 20 years when it comes to our rights to reproductive freedom and bodily integrity.
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