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Has Alex Chapman been a victim of victim blaming? The author of this comment in the University of Winnipeg’s Uniter seems to think so.

While her view that female victim blaming is “beginning to become taboo”, and that it is always met with “backlash”, may be a tad optimistic for my taste, I think her overall argument is sound and definitely worth considering.

“Allowing such details [victim’s sexual history] to come forward in court and in the media perpetuates the incredibly harmful practice of victim-blaming that has seen such effective social back-lash in recent months.
A failure to hold those same standards for male victims reveals a fundamental flaw in the movement – a hypocrisy that seriously damages the legitimacy of the campaign to stop victim-blaming.”
             (Sandy Klowak, “Men can be victims, too: Victim-blaming discussion shows gender double-standard” in The Uniter (11 October 2012)), online: http://uniter.ca/view/8153)
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This just in! The Manitoban will indeed publish Eli’s letter responding to “For those who are concerned” in their next issue.

Apparently the squeaky wheel does get the grease…

So keep your eyes peeled (the Manitoban publishes Thursday every week), and we’d still really encourage everyone to consider writing in, too!

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Last week, the Manitoban published an editorial by Joshua Van Benthem entitled “For those who are concerned” (read the full article by clicking on the title). In it, Van Benthem argues for the criminalization of late term abortion, saying that once a fetus is “viable” for life outside of the womb, it should be deemed a full legal person, even if it has not yet been born. A woman terminating a pregnancy beyond this point could then be subject to criminal sanction. He goes on to discuss the defeated Bill 312, attempting to establish that the would-have-been committee’s consideration of  “merely the medical facts” and “not legal precedent” would have somehow justified the infringement of women’s human rights he advocates.

Feeling rather concerned myself, I wrote to the Manitoban to express my disagreement with Mr Van Benthem’s views. I was disappointed not only to see that my letter was not featured in this week’s issue, but even more so to see no responses from anyone on the topic. With an issue as controversial as abortion and legal personhood for the unborn, I think it behooves the Manitoban to provide viewpoints on both sides of the issue.

I suppose it’s possible that a response to “For those who are concerned”, either mine or someone else’s, may be published in the future. Let’s hope so. In the meantime, I reproduce here the letter I wrote, as I sent it to the Manitoban last Friday. I think it would be great to have others respond to Van Benthem, as well. Have a look at what I wrote and think about what you might add or change, and then send it in! Their email address is : comment@themanitoban.com.

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5 October 2012

Re: “For those who are concerned,” by Joshua Van Benthem

Dear Manitoban,

I wish to respond to Joshua Van Benthem’s editorial in your most recent issue. I found the title “For those who are concerned” to be particularly apt, though likely not in the way that the author intended. I’m concerned, alright. I’m concerned about the human rights of women, and those who seek to limit them.

The author argues that, because some fetuses might be capable of surviving independently outside of the womb prior to the moment of complete birth, that “there should be a line” at some undetermined point in fetal development at which the fetus would be deemed a person, and thus, that aborting it would become a criminal offence. The Parliamentary Committee that would have been created by Motion 312, had it passed, would supposedly have looked at where this “line” ought to be drawn.

I noted that conspicuously absent from the items that would have been addressed by the Committee (as listed by the author) was, “What are the legal impacts and consequences of altering Subsection 223(1) on the fundamental human rights of the mother?” Clearly, the reason this query was omitted is that the answer to it will, in all cases, be that the impact on her rights would be unconscionable, and would render the committee’s other queries moot. While the “viability” of a fetus outside of the womb at any given point of its prenatal development will inevitably vary from case to case, the rights of each individual pregnant woman are necessarily invariable at all times during her pregnancy.

Turning our minds for a moment to the practical implications of what the author proposes, the notion that pre-natal “viability” can somehow be definitively determined and codified in law borders on absurdity. For example, is this “viability” with or without medical intervention? A baby can be born several months premature and survive with the help of incubators, intravenous nourishment, and other intensive therapies; would this be sufficient to be considered viable? What about the fact that a fetus with a chromosomal or other abnormality would very likely achieve “viability” much later in its development than would a “normal” fetus; were the author’s proposal to take effect, would this not create an untenable difference in legal treatment based on disability? Further, making this determination would necessarily be based on speculation; presumably the fetus would not be excised from the mother and left lying out in the open to see if it lived without her. Any information as to the physical state of the fetus to bolster the speculation would, of course, have to be gained via an invasion of the mother’s physical person. This only serves to highlight, yet again, the inseparability of a woman and her fetus at all moments until complete birth takes place, regardless of its stage of development.

Any attempt to ascribe independent personhood to the contents of a woman’s womb is a clear abuse of that woman’s physical autonomy and human rights. Canada’s highest court decided this in 1988, and no “medical evidence” can justifiably vary it.

Sincerely,

Elizabeth Mitchell

Co-Chair, Feminist Legal Forum

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The Dalhousie Law Students Society has passed a resolution formalizing their opposition to Bill C-10, also known as the Safer Streets and Communities Act. They have declared their solidarity with the Canadian Bar Association, which recently released a 100 page report detailing why they oppose C-10. Dal’s LSS also encourages other law student groups to follow suit. Read all about it here.

Is this something the FLF should get involved with? Or Robson Hall generally? Let us know what you think!

 

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On November 2, Dr. Jennifer Schulz joined us to discuss “A Feminist Approach to Torts Law”. Sporting a very fashionable FLF t-shirt, Dr. Schulz encouraged the group of students in attendance to approach the law critically. This is of particular importance in mandatory courses, where many professors will unconsciously teach from a perspective of liberalism, a perspective that treats the law as objective and neutral, even where inequalities are rampant. Although torts law may be presented as fundamentally objective, Dr. Schulz challenged us to think about ways in which torts law can benefit from feminist analysis.

A first and perhaps obvious example is the notion of the “reasonable person”. Professors and students may accept this standard as simple – the standard is simply reasonableness. We may all assume that our perspective on what is reasonable is the same, in reality, the opposite is true. This notion is sharpened when we consider that the “reasonable person” is just the “reasonable man”, the “bloke on the Clapham bus” from England. This standard was changed to reflect modern day political correctness, but has the way it is applied really changed? Feminist scholars have critiqued this approach, and we learned that two lines of thought have emerged in the literature. One approach recommends accepting that men and women do view the world differently and it might be useful to take about care in a positive way, rather than a negative duty to not to harm. The other approach is more radical as it questions the efficacy of relying on objective standards, and calls for focusing on the actual tortious event and how someone with that person’s experiences would react in the circumstances. This approach recognizes that nothing is actually objective, even if we apply that label to the standards we use, and challenges an approach that allows for conflating the reasonable person with a normative standard of behaviour. As the student discussion suggested, taking this kind of subjective approach may be beneficial to balance out the racist, classist and sexist attitudes a person faces as soon as they enter a courtroom.

Dr. Schulz also highlighted the area of damages as another aspect of torts law that can benefit from feminist perspective. The principle of compensation (putting a person back to where they would have been had the tortious event not occurred) can actually perpetuate inequality. A thought-provoking example is that of lost future wages. Because pay inequity remains rampant, the damage awards women receive for lost earnings reflect this economic inequality. Damage awards are therefore structured along discriminatory lines. We learned that, to this day, courts routinely take a percentage off a damage award for contingencies to account for women bearing and raising children. 7 percent is routinely knocked off of the damage awards women receive simply because women shoulder a disproportionate burden for child bearing and rearing in society. 

Another topic in torts that cries out for feminist critique is the treatment of mothers. The case of Dobson v Dobson, where the Supreme Court held that a mother does not owe a duty of care to her fetus, is one example. While this case is heralded as a feminist victory, the result also meant that a mother who gave birth to a disabled son as a result of her negligence was unable to collect insurance money to help her raise her child. The tension in this case is clearly worthy of further discussion. Finally, Dr. Schulz pointed to so-called “wrongful birth” cases and noted that there is judicial reluctance to ever call the birth of a child damages or harm, therefore they don’t want to compensate for these damages or harm. Yet, the burden for child raising falls disproportionately on women, thus this is another very gendered example of not acknowledging women’s damages in the way that men’s would be.

The lunch-hour discussion wrapped up with some very thoughtful comments and questions from students in attendance. Certainly, there is much to consider around the notion of standard of care. Why not utilize a concept of actual care? As Dr. Schulz posited, why do we obsess over compensatory principles to “equalize” a person, when the law could actually care about an individual and seek to help them as much as possible in a given case. I think I can speak for all in attendance in saying that we left the room challenged and encouraged to approach doctrinal law courses with a critical perspective and to ask the difficult questions, beyond facts, ratio and holding: who does this decision benefit? Who is the law really helping? What is the actual result of this? Is it really true that this is neutral?

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Dayna Steinfeld is co-chair of the Feminsit Legal Forum.

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As we mentioned the other day, the Winnipeg Free Press took a step in the right direction by publishing Meghan’s letter to the editor.  The letter was a response to Miss Lonelyheart’s column from a few days before, which bore the brutal and offensive headline “He didn’t rape you; You were too lazy to say no.”

Well, yesterday (Oct 25), Miss Lonelyheart’s herself saw fit to publish a letter responding to the column. Perhaps unsuprisingly, however, the writer not only agrees with the previous column, but actually thanks Miss L emphatically for her insensitive and irresponsible response. See Below:

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Dear Miss Lonelyhearts: You’ll probably take some flak for your response to Just Wondering, who had consensual sex with a man who begged her until he wore her down; but not from me. Thank you, thank you, thank you for this plain-spoken, no-nonsense response! The fact that a woman has regrets afterwards doesn’t mean it was rape. The fact that a woman finds it difficult to live with the self-image of being the kind of person who has pity sex with losers doesn’t make it rape. IMHO, it isn’t rape unless she honestly, truly, had no choice in the matter. — Fairness and Clarity, Winnipeg

Dear Fairness: This young woman had a man begging her for sex. He didn’t force her. Rather than asking him to leave and showing him the door, she walked him down the hallway to her bedroom and had sex with him because she felt sorry for him. She called it charity sex. Afterwards, she wished she hadn’t. That is not rape. She should have picked up his jacket, told him in a firm and friendly way it was time to go home, and walked to the door and opened it.

A link to the column is here, but it will likely only be available for about a week.

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Here at the FLF, it’s not our intention to sound like a broken record. That being said, we can’t over-state the importance of documenting and commenting on how prevalent and concerning these misconceptions about sexual assault really are.

We’d love to hear anything you have to say about this, and we’d also love to read more letters in the Free Press setting Miss Lonelyhearts straight!

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A note from Eli: signing the letter “Fairness and Clarity” is not only nauseating; it reminds me of Fox News. Yuck.

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Update on our earlier post about Miss Lonelyheart’s column, “He Didn’t Rape You; You Were too Lazy to Say No”:

The Free Press has published a letter to the editor from the FLF’s very own co-chair Meghan Menzies. A big thanks to Meghan for writing such a great letter, and thanks also to the Free Press for publishing it.

Here’s the letter:

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Offensive and callous

This is in response to Miss Lonelyhearts’ Oct. 14 piece, He didn’t rape you; you were too lazy to say no. We are embarrassed for any paper that would publish such an offensive and callous headline, especially with the stigma and stereotypes that currently pervade the issue of sexual assault.

In addition, Miss Lonelyhearts’ response was entirely inadequate because it totally disregarded the seriousness of rape and provided no information on crisis counselling or other sexual assault resources, information that could clearly have been helpful to a woman who is, it appears, confused and hurting.

Lastly, harassing someone into sexual activity does not equal consent. Consent must not only be active, but willing. In disregarding that, Miss Lonelyhearts’ response has actually contributed to rape myths.

Overall, this article demonstrates a clear lack in awareness, integrity and professionalism.

MEGHAN MENZIES

Winnipeg

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You can have a look at it on the Freep website here. We’ve already noticed a few (anonymous, natch) comments, and suffice it to say, they aren’t all favourable. But as Dayna so wisely wrote a few days ago, “you have to realize that the more vocal the oppostion is, the better you are doing at being an activist.” Amen!

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