Posts Tagged ‘Karen Busby’

Now that exams are wrapping up, everyone has more time to enjoy the finer things in life… such as stimulating intellectual discussion on important, difficult issues! Hooray! Take for instance, the following: on December 8th, the Supreme Court heard arguments in the much-talked about R v NS case. Counsel for each side argued whether a complainant in a sexual assault case should be permitted to keep her face covered by niqab during testimony. Here’s a really great article from rabble.ca with two significant Robson Hall connections:law student Maria Kari authored the article, which features snippets of an interview with our very own Professor Karen Busby. It also includes a link to the factum submitted by LEAF, who had intervenor status at the hearing. Check it out! Great food for thought to accompany your turkey, latkes, 5 kilo box of mandarin oranges, etc.

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R v Rhodes caused several media uproars and made national news. Better known as the “Justice Dewar case”, Rhodes encapsulates much of the systemic discrimination that remains in sexual assault law. You’ve heard about the case in the news, now you have the chance to learn more about the decision and the fall-out and to discuss your thoughts on the issues. Join the Feminist Legal Forum on Thursday December 1st from 12 -1 in room 308 for “Debriefing R v Rhodes“. Leading Manitoba feminist sexual assault law scholar Karen Busby will be facilitating the discussion.

For those who are interested, the Manitoba Court of Appeal will be hearing the Rhodes appeal on November 30th at 9:30. As the Crown and defence have agreed there should be a new trial, the appeal is likely to be quite short.

If you’d like to do a bit of thinking about the case in advance of the roundtable, we recommend you read Prof. Busby’s blog post, which includes links to the conviction and sentencing transcripts, media reports, and LEAF’s motion for leave to intervene. The blog post can be found here

Karen Busby worked with the Women’s Legal Education and Action Fund on their motion to intervene in the Rhodes case. She has been with Robson Hall’s Faculty of Law since 1988. She researches in the area of sex, sexuality and violence.  She was an active participant in cases and other law reform efforts directed at the recognition of same-sex relationships and has worked on challenges to the bawdyhouse/indecency laws, reform of age of consent laws and gender identity issues. She has worked on numerous research projects on gendered violence including sexual assault, girls involved in prostitution, sexual expression, and the implementation of civil domestic violence legislation. She appeared as counsel in the Supreme Court of Canada in Little Sisters, a case about the discriminatory treatment of LGBT bookstores by Canada Customs. She teaches constitutional law, administrative law and gender and the law.

She has received numerous awards recognizing her human rights work including the YWCA Woman of Distinction Award (2007); Man. Bar Ass’n “Pro Bono” Award (2005); Can. Bar Ass’n’s Sexual Orientation and Gender Identity Conference “Hero” Award (2004); LAMBDA Magic “Community Changer” Award (2002); UofM Community Outreach Award (1996). Prof. Busby was inducted into the Q (Queer) Hall of Fame in the summer of 2011.

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By Professor Karen Busby

In early 2011, a police officer in Toronto advised a group of law students that women who dress like sluts should expect to be victimized. Soon afterwards, Mr Justice Robert Dewar of the Manitoba Court of Queen’s Bench gave sentencing reasons from the bench that invoked similar beliefs. He found that mitigating factors in sentencing in a major sexual assault included that the complainant provoked the assault because she wore high heels, heavy make-up and a tube top.  He found that “sex was in the air” and that the defendant was a “clumsy don juan”. The defendant and the complainant, a much younger and smaller aboriginal woman, had known each other for about 20 minutes before the assault occurred. She had rebuffed his sexual advances; picked up a stick to use in self defence; and asked him in the course of the assault if he was going to kill her.  She had bruises on her backside and legs as well as cuts from running through the forest half dressed following the assault. Yet even after making these findings and rejecting the defences of consent and mistaken belief in consent, Dewar was obviously of the view that the complainant bore some responsibility for what had happened.

As happens in most sexual assault cases, the reasons on conviction and sentencing were not issued as formal reasons and therefore would have escaped any public scrutiny except that a Winnipeg Free Press reporter happened to hear about them. (He may or may not have been in court–this is not clear to me.) When the paper published the story, it was picked up across the country in a wave of indignation. Three weeks later, the newspaper received the sentencing transcript and posted it to their website.

Complaints were made to the Canadian Judicial Council about Dewar’s comments in the sentencing decision by various individuals including the Manitoba minister responsible for the status of women. The Crown filed an appeal against sentence. In August an appeal date of November 30 was set.

LEAF monitored the proceedings and in mid-October, upon seeing the Crown’s appeal factum, realized that the sentencing appeal had been abandoned and that the Crown had conceded that a new trial was necessary because of WD problems. (The SCC has recognized that WD’s complex formula for assessing credibility is a fertile ground of appeal in mistaken belief cases.)  The defendant’s position was that a directed acquittal was required.  LEAF filed an application for leave to argue that

  • There was no air of reality to the defendant’s assertion of mistaken belief that the WD credibility assessments did not need to be made.  The judge found an air of reality to the claim only because of his mistaken reliance on discreditable stereotypes.
  • Expose how discriminatory beliefs operated in the case.
  • Examine how these beliefs present additional barriers for indigenous complainants.

Like the sentencing decision, the conviction transcript(which LEAF received finally on October 21) reveals that the trial judge made his decision in reliance on stereotypical beliefs about women who alleged that they have been sexually assaulted.  In fact, the conviction transcript is in some ways more problematic than the sentencing decision. The opening line is “After a night of drinking when four people decide to climb into a car around 2:30 am to continue to party rather than head home to their own beds, something bad is bound to happen.”

The Winnipeg Free Press under a front page banner headline wrote an story outlining LEAF’s position. It also published a sidebar on Statistics Canada data on the dismissal prosecution of sexual assault cases in Canada and even more dismissal record in Manitoba—figures set out in the LEAF factum.    Only 31% of sexual assault cases on Manitoba result in a guilty verdict (Compared to 43% Canada wide) ad 67% if sexual assault cases in Manitoba are stayed before trial (compared to 46% Canada wide.) This paper then published an editorial calling for an explanation for the dismissal record. This story was picked up by other media including newspapers across the country. The Crown lashed back stating that the Statistics Canada figures were wrong. Its protestations are unconvincing–but the technical details of that story are for another blog.

The intervention hearing did not go well. The motions judge was critical of the media coverage and suggested that LEAF had activated its media machine. The defendant abandoned the appeal for an acquittal.

In mid-November, the CJC issued its decision. It found that Dewar’s conduct fell short of what was expected of a judge. However in light of his sincere apology and his willingness to take gender sensitivity training, no formal sanction was necessary. The CJC made no comments on the sentencing decision stating that this matter was before the Court of Appeal.  This assertion was, by the time it was made, inaccurate as the Crown had already abandoned the sentence appeal.  A few days later, the motions judge denied LEAF intervenor status on the ground that it was raising new issues.

It will be interesting to see what the Court of Appeal now does on November 30. In light of the Crown defence agreement that a new trial is necessary, it is possible–perhaps likely–that the court will simply issue a short decision making such an order.  One can only hope that they will take this case as an opportunity to comment on the trial judge’s appalling comments in the two Rhodes decisions and perhaps to acknowledge that judges, prosecutors and the police need to do more to address systemic discrimination in sexual assault cases in Manitoba.

Karen Busby is a professor in the Faculty of Law at the University of Manitoba and is the Academic Director of the Centre for Human Rights Research. On Thursday December 1 from 12 -1, Prof. Busby will be joining the FLF to facilitate a roundtable discussion on the Rhodes case.

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Read the original article here:


I have reproduced the text from the original article below to make for easier reading

Winnipeg Free Press – PRINT EDITION

Sexual defence threatens women

By: Karen Busby

Posted: 6/11/2010 1:00 AM

On Monday, the Supreme Court of Canada will hear the JA case. JA was convicted of sexual assault for tying his 22-year-old partner’s hands behind her back and inserting a dildo in her anus while she was unconscious. She testified at trial she had agreed to erotic asphyxiation (strangulation) at her partner’s hands because she thought it would enhance sexual arousal. Instead, she became unconscious. In giving this evidence, she recanted statements she made when she first went to the police, including her statement that she had not agreed to erotic asphyxiation. The trial judge described her as a “classic recanting victim.”

The Ontario Court of Appeal overturned JA’s conviction, stating the complainant had consented in advance to sexual activity that occurred while she was unconscious and therefore no sexual assault occurred. JA’s lawyer is now arguing the law should just leave couples alone if they want to engage in “spicy sex.” He also asserts men who sexually touch a sleeping partner could be prosecuted if JA’s conviction is reinstated.

Erotic asphyxiation is extremely dangerous. There is no safe way to engage in it. Any time the brain’s blood supply is cut off, there is a danger of brain damage and even death. At least 1,000 Americans accidentally kill themselves each year while attempting it. Even advocates for radical personal autonomy regarding sexual practices agree all sexual activity must cease when a partner loses consciousness. Common sense dictates consent to engage in sexual activity is never present when an unconscious partner is in a potentially life-threatening situation.

The sleeping-partner problem the defendant’s lawyer raised is a red herring. In almost 25 years of research, I have never seen a sexual-assault prosecution of a man who wakes a sleeping spouse with a sexual touch unless the parties were already estranged and no longer sharing a bed.

On the other hand, there are recent cases where men have been acquitted of sexual assault for sexually touching women with whom they have no sexual history while the women are sleeping, intoxicated, drugged or incapacitated. Acquittals were granted because the defendants perceived a signal of possible sexual interest (such as flirtatious comment) at some earlier time. Sexual assault is often a crime of opportunity so perhaps it is not surprising these cases most often involve complainants who are aboriginal, young or physically disabled. A doctrine of advance consent will make these women even more vulnerable to sexual violence.

The Supreme Court should soundly reject the Appeal Court’s determination that advanced consent should become part of Canadian law.

At JA’s sentencing hearing — but not before — the trial judge learned he was a lifelong criminal and described him as a “deviant and dangerous man.” JA had been convicted on 13 previous occasions of multiple charges for violent offences. Three of the previous sets of convictions involved wife abuse; two of those involved this complainant. He was sentenced to 18 months imprisonment, two years probation and prohibited from contacting the complainant.

Our criminal evidence laws prevent a trial judge in most cases from having information about a defendant’s prior convictions when making the determination of guilt. Thus, judges make decisions about a complainant’s credibility without having a full understanding of her actions, including why she made the complaints and what led her to her recantation.

Strangulation in wife abuse cases is common, difficult to detect and a known precursor to the use of lethal violence. In one study, 68 per cent of all battered women who sought emergency medical attention had been strangled by their male partners. Another study of the emergency records of 1,000 women who had been strangled by their partners found there were no visible or photographable markings to the neck on 85 per cent of the women. Non-fatal strangulation is a known risk factor for lethal violence. Therefore if someone survived strangulation by a partner, steps to prevent violence from escalating must be taken.

In light of these very real dangers, perhaps it is time to reconsider the evidence rules, especially when a recanting complainant has experienced serious repeated violence at the hands of the same defendant. It will be interesting to see if the Supreme Court will contextualize the complainant’s evidence in light of JA’s previous convictions.

But should the Appeal Court’s decision and JA’s arguments find purchase with the Supreme Court, we can expect to see more prosecutions in cases involving strangulation thwarted by claims that “we were just having fun.”

Karen Busby is a law professor at the University of Manitoba. She provided assistance to the Women’s Legal Education and Action Fund (LEAF) in preparation of its brief to the Supreme Court of Canada in the JA case, but the views expressed in this article are hers alone and should not be attributed to LEAF.

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