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Posts Tagged ‘Feminism and Law’

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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Great news– our next roundtable is right around the corner!

It’s happening one week from today– Wednesday, November 2nd — from 12-1pm in room 309. We are delighted to have as our featured guest speaker our very own Associate Dean of Research and Graduate Studies Dr. Jennifer Schulz. It’s tentatively titled: “A Feminist Approach to Torts Law”. Dr. Schulz’s roundtable last year was super interesting and interactive, and also standing room only– so be sure to come out and be sure to come early!

Dr. Schulz has kindly passed along a short reading for anyone who would like a little primer for her presentation. It’s called “Spaces and Challenges: Feminism in Legal Academia” by Susan B. Boyd (UBC Law) and you can find it here.

(Anyone having trouble with the PDF– seems that one minute it works and the next it doesn’t– , please shoot us an email at flf.robsonhall@gmail.com and we will most happily hook you up!)

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At our post-slutwalk discussion on Saturday, one of our rad new members, Carla, mentioned the Miss Lonelyhearts column from the previous day’s Winnipeg Free Press. The headline, she said, read “He Didn’t Rape You; You Were Too Lazy to Say No“. No one else had seen it, but we were all pretty horrified by Carla’s description of it. When the rest of us were able to have a look , we were even more disturbed by the tone taken by Miss Lonelyhearts. While the headline itself reads like a slap in the face to anti-victim blaming efforts, Miss Lonleyhearts also provided no crisis counselling information and seemed to have no notion of the actual definition of consent as being not only active but willing. The issue here is not whether this man would be convicted of sexual assault on the facts we have available, but rather that the tone of the response is a perfect example of out-dated and damaging attitudes towards unwanted sex.

Winnipeg Free Press

Here is a link to the column. And, becuase it will likely be archived in the next few days, we’re reproducing the question and response below.

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He didn’t rape you; you were too lazy to say no

By: Miss Lonelyhearts

Posted: 10/14/2011 1:00 AM

DEAR MISS LONELYHEARTS: I had unwanted sex with a guy because he was begging me, and then afterwards I felt it was not something I really wanted. I felt forced because he broke down my resistance. I just finally gave in after all that begging and took him down the hall to my bedroom to get it over with, so he’d go home. It was a charity thing, if you know what I mean. I wouldn’t have done it with him if he hadn’t begged and seemed so pathetic. Is breaking down resistance a form of rape? — Just Wondering, Winnipeg

 Dear Wondering: No. This was certainly not rape and not something you would want to send anyone to jail for. It was your decision. You weren’t forced; you were too lazy to take him to the door and say bye-bye. He may have bugged you until you DECIDED it was easier to say yes than to say no, but he didn’t force you. You also called it a “charity” thing — giving your body to him and taking his — inferring you felt sorry for him. That’s no reason to have sex.

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A few members of the FLF have been talking about this, why it seems so wrong, and what to do about it. A letter to the editor of the Winnipeg Free Press is in the works, but we also thought it was important to share it with others. If you have any thoughts, please share them!

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Eighty-two years ago today, the Person’s case was decided. Have a look at the following message from Manitoba Status of Women to find out more about the history behind this important anniversary (and while it is very significant, keep in mind that legal equality still had a long way to go for many Canadians).

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Today, October 18, is a historic day for women in Canada. It marks the 82nd
anniversary of the Person’s Day case, which gave many women in Canada the right
to personhood under the law.

Though it seems impossible today, before 1929 women in Canada were considered “persons in matters of pains and penalties, but (are) not persons in matters of rights
and privileges”.  Even though many women had won the right to vote federally in Canada in 1918, their rights continued to be undermined by the fact that they were not considered “persons” under the British North America Act (BNA Act), which governed Canada at that time.

This law had many implications for Canadian women. For several years, women’s groups across Canada had called for a female Senate appointment.  However, consecutive Prime Ministers refused to make these appointments, claiming that only “qualified persons” were eligible to sit in the Senate under the BNA Act.

In 1927, Emily Murphy, an Alberta magistrate, and four of her friends and
colleagues – Nellie Mooney McClung, Louise Crummy McKinney, Irene Marryat
Parlby and Henrietta Muir Edwards – decided to take action.  They submitted a petition to the Supreme Court of Canada, similar to what we know now as a constitutional challenge. This petition asked the Courts to interpret the BNA Act regarding the personhood status of women.  Canada’s highest court upheld the interpretation that women were not considered persons under the BNA Act.  Undeterred, the group appealed to the final court of appeal at that time, which was the Judicial Committee of the Privy Council in England. They emerged triumphant from the proceedings on October 18, 1929 – the word “persons” in the BNA Act was now interpreted to include both men and women!

As a result of this ruling, the first woman senator, Cairine Wilson, was appointed in 1930. It’s important to note, however, that only some women became persons under 1929 ruling. Many women, including Aboriginal, Asian and other women of colour, remained ineligible because of their race.  It was many years until the rights of these groups of women were fully recognized.

The five women who achieved personhood for Canadian women became known as the “Famous Five”. They set the stage for many constitutional achievements for Canadian
women, such as the equality provisions in the 1982 Canadian Charter of Rights
and Freedoms.  For this reason, each October Canada honours and celebrates the accomplishments of Canadian women in history, and looks towards an even brighter future for equality rights in Canada.

Read more details about the story of the Person’s Case at http://section15.ca/features/ideas/2004/12/22/persons_case/

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Yo FLF,

Manitoba Status of Women alerted us to this super cool event (feat. our very own Roundtable presenter and fabulous feminist Dean Dr. Lorna Turnbull!).  By the sounds of it, definitely worth checking out!

Wednesday, November 2, 9am-4:30pm

 

University Of Winnipeg, Convocation Hall, 515 Portage Avenue

 

 

What does a government budget have to do with women’s equality?
Come learn how the spending and taxing decisions of the federal government affect women’s equality rights. Learn how governments set budget priorities and how women are advocating for change. Share your own concerns and hopes and help create budgets that represent you.

 

Presenters

Dr. Marilou McPhedran          Principal, Global College, University of Winnipeg

Dr. Lorna Turnbull,                  Dean, Faculty of Law, University of Manitoba

Dr. Meg Luxton                       Professor, School of Women’s Studies, York University

Dr. Barbara Cameron          Associate Professor, Department of Equity Studies and Political Science, York University

Co-organized with FAFIA and University of Winnipeg Global College

All workshops are free and lunch will be provided. To register or for more information contact UNPAC, 204.772.7876. Please inform UNPAC of any food allergies, childcare requirements or required disability supports.

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The FLF is thrilled to announce our first roundtable of the 2011/2012 academic year. Join us on Monday, October 3 from 12 – 1 in room 308 for a discussion of Feminism and Law in Today’s World, facilitated by Dean of Law, Dr. Lorna Turnbull.

This discussion is an opportunity to come and consider the question of how feminism and law intersect today. What can feminism offer? How might it apply? What areas of law are lacking in feminist approach? If you are new or old to the idea of feminism and law, this is a great discussion to attend to learn more and share your thoughts.

If you would like to do some thinking about this topic in advance of the roundtable, Dean Turnbull has suggested a short reading. Find it here! 

Dr. Lorna Turnbull has been a Faculty member at Robson Hall since 2001. Between 2005 and 2010, Dean Turnbull was the Associate Dean of Students. After filling the role of Acting Dean for the 2010/2011 year, Dr. Turnbull was named Dean of the Faculty. Dean Turnbull completed her Master of Laws at Columbia University with an LL.M thesis of “A Feminist Theory of Law and Social Change? A Beginning”. Dean Turnbull’s J.S.D. (Doctor of the Science of Law), also from Columbia, was written on “Bearing Children, Bearing Burdens.” Dr. Turnbull researches women’s equality as shaped by laws related to economic rights and obligations, workplace regulation and social inclusion as these impact upon care for dependents. Her primary teaching interests include international and domestic human-rights law, taxation law and policy, gender and equality and women’s rights in a global context. Her 2001 book, Double Jeopardy: Motherwork and the Law, is considered “essential reading” on the topic and has been widely credited for being accessible to lay audiences in addition to academics.

We hope you will join us for this exciting discussion!

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