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Posts Tagged ‘food for thought’

There have been two big stories in the news recently about sexual harassment:

* American presidential hopeful Herman Cain

* Allegations of members of the RCMP, especially  Catherine Galliford

It would be easy for those of us lucky enough to work in respectful environments to be under the impression that workplace sexual harassment was rapidly (and happily) becoming a thing of the past. These stories, however, make it clear that the problem persists; while allegations in both stories have taken some time to come to light, all of the incidents in question are by no means ancient history. And they both raise a lot of questions: Why do these incidents and allegations persist in what is supposedly an increasingly enlighted and egalitarian world? Is a para-military, rigidly hierarchical structure partly (or mostly) to blame? Are the women involved being too sensitive, or are the men involved being too insensitive? What’s the best way to deal with these kinds of allegations?   

 The Globe and Mail published a somehow simultaneously pointed and yet tongue-in-cheek opinion piece this weekend by Tabatha Southey that we enjoyed and thought we should share. It’s called “Lighten up, ladies! Sexual harassment, sexual shmarassment, right?“, and it begins with Herman Cain’s comment, “I do have a sense of humour — some people have a problem with that.” Check it out here.

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Update: Here‘s another opinion piece, this one from the New York Times, written by Katie Roiphe and taking a very different approach workplace sexual harassment. It’s called “In Favour of Dirty Jokes and Risque Remarks.”

Give them both a read and let us know what you think!

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The Canadian Judicial Council has finished reviewing the extremely controversial remarks made by Manitoba Court of Queen’s Bench Justice Robert Dewar in his decision in R v Rhodes this past February. Those remarks sparked major protests and much discussion.

 Protesters in Winnipeg carry signs demanding Manitoba Court of Queen's Bench Justice Robert Dewar's resignation on Feb. 25.

CBC Manitoba reported today that, as a result of the CJC’s review, Dewar will not face any penalty. However, he has issued an “unequivocal apology” to the victim in Rhodes, and also expressed “regret” for “trauma” caused to those who “have worked directly with past victims.”

In that decision, Dewar said or referred to the following: the complainant and the accused met in “inviting circumstances“; the accused was a “clumsy Don Juan“; he put emphasis on what the complainant was wearing on the night in question; and of course, perhaps his most infamous comment, that “sex was in the air.”

In his apology, he noted his “poor choice of words,” and the CJC found upon completing their review that his comments “were also seen as reflecting negative and outdated gender stereotypes, as casting blame on the victim and showing unacceptable gender bias against women.”

What do we think? Is this enough? Some members of the FLF have been talking, and it seems that a few of us are feeling a little conflicted.

On one hand, there’s the view that having Dewar removed from the bench altogether would have been too harsh of a punishment. On the other, there’s a pretty strong feeling among most of us that this apology, or even the notion of apologizing in general, seems trite. Dayna pointed out that, hopefully, as a result of this process, more judges will seek to educate themselves on gender equality issues.

We all feel good about that potential outcome. But it was also pointed out that it’s virtually impossible to conceive of Dewar as impartial at this point. And while some might argue that impariality itself is an indealized judicial standard that never actually exists, it does seem particularly problematic in this instance. It’s disturbing to remember that, despite any ‘senisitivity training’ he has now had, Dewar embraced these outmoded, sexist ideas and applied them to an actual case as recently as 9 months ago.

Finally, we’re troubled by the apology being presented as a “poor choice of words.” Certainly, the words chosen were unquestionably poor. But what matters more are the beliefs Dewar held that led him to choose those words. Can we take his apology to mean that, had he not used such explicitly sexist and offensive language, we wouldn’t have anything to be upset about? Dayna made the point that “Mainly I worry that when systemic discrimination against sexual assault complainants isn’t as blatant as it was in this case, it passes unacknowledged and women end up losing.”

We would really love to hear what you think about this. Was the apology sufficient? What alternative measures could or should be taken? Let us know!

And don’t forget: the topic of this month’s roundtable will be sexual assault law, and certain aspects of the Rhodes appeal. Stay tuned for more info!

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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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Lately at the FLF, we’ve been talking a lot about the triumphs and tragedies of being an activist. Luckily, as it turns out, there’s plenty of inspiration out there to keep us going.

Dayna heard this great interview on the Current (CBC Radio1) on Tuesday, and thought to share it. Thanks Dayna! It features American Olympian John Carlos, who in 1968 used the Olympic podium as a political platform. It turned out to be a very controversial move. Check out the interview here, and hear Carlos describe his experiences as an activist in an unexpected forum.

john carlos web.jpg

On a slightly lighter note, I (Eli) have also noticed that inspiration and motivation can come from less… serious sources. Making my breakfast this morning, I enjoyed a dance-party-for-one to the (I think) classic ‘anthem’ None of Your Business by Salt n’ Peppa. I can’t say I’m 100% sure about their intended message, but it did make me think of issues like cross-examining a complainant in sexual assault case on her previous sexual history. Seriously! Anyway, have a feel-good dance party of your own here.

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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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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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